20020720 Ver 1_Complete File_20020507

n M STATF n
Quw STATE OF NORTH CAROLINA
DEPARTMENT OF TRANSPORTATION
MICHAEL F. EASLEY P.O. BOX 25201, RALEIGH, N.C. 27611-5201 LYNDO TIPPETT
GOvi;RNOR SECRETARY
August 18, 2004 an '4909!
AUG 20 2004 "
North Carolina Division of Water Quality DVVQ
401 /Wetlands Unit L480RATORY &ECTIOI,
1621 Mail Service Center
Raleigh, NC 27699-1621
Reference: DWQ Project No.020720
NCDOT/SR 2903 Randolph County
Dear Sir or Madam:
WETLANDS/ 401 GROUP
AUG 2 3 2004
WATER QUALITY SECTION
Attached is certification of completion for the work performed under the above
referenced permit. The certification is signed by our field agent. If additional
information is required please advise.
Sincerely,
Timothy Vnson P.E.
Division Engineer
Attachment
cc: J. L. Picklesimer, PE, PLS
Reuben Blakley
Art King
File
DIVISION 8, P. O. BOX 1067, ABERDEEN, NC 28315
Telephone: [phone] Fax: [phone]
?QF W A r?Rp
?O G
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O ?
Michael F. Easley
Governor
William G. Ross, Jr., Secretary
Department of Environment and Natural Resources
Gregory J. Thorpe, Ph.D.
Acting Director
Division of Water Quality
DWQ Project No.: 020'-1 Zo_ County: 4?14V?,Ae 110 L.
Applicant: (IC DoT
Project Name: 512 Z903
Date of Issuance of 401 Water Quality Certification: __ V11,a?TIQ -Zom-Z
Certificate of Completion
Upon completion of all work approved within the 401 Water Quality Certification or applicable Buffer
Rules, and any subsequent modifications, the applicant is required to return this certificate to the
401/Wetlands Unit, North Carolina Division of Water Quality, 1650 Mail Service Center, Raleigh, NC,
27699-1650. This form may be returned to DWQ by the applicant, the applicant's authorized agent, or the
project engineer. It is not necessary to send certificates from all of these.
Applicant's Certification
I, ____, hereby state that, to the best of my abilities, due care and
diligence was used in the observation of the construction such that the construction was observed to be built
within substantial compliance and intent of the 401 Water Quality Certification and Buffer Rules, the
approved plans and specifications, and other supporting materials.
Signature: Date:--,---------
Agent's Certification /
1, KE?AtNU.?/ _., hereby state that, to the best of my abilities, due care and
diligence was used in the observation of the construction such that the construction was observed to be built
within substantial compliance and intent of the 401 Water Quality Certification and Buffer Rules, the
approved pla ands ecifications, and other supportin to ials.
Signature: Date:__ to oq
If this project was designed by a Certified Professional
1, , as a duly registered Professional (i.e., Engineer,
Landscape Architect, Surveyor, etc.) in the State of North Carolina, having been authorized to observe
(periodically, weekly, full time) the construction of the project, for the Permitee hereby state that, to the
best of my abilities, due care and diligence was used in the observation of the construction such that the
construction was observed to be built within substantial compliance and intent of the 401 Water Quality
Certification and Buffer Rules, the approved plans and specifications, and other supporting materials.
Signature -Registration No. ___ Date
NCDENR
Division of Water Quality 1650 Mail Service Center Raleigh, NC 27699-1650
Wetlands/401 Unit: [phone]
Fax: [phone]
OF ?? n r ?R William G. Ross Jr., Secretary
?Ot ?G North Carolina Department of Environment and Natural Resources
Vj 7 Gregory J. Thorpe, Ph.D.
y Acting Director
O Division of Water Quality
May 14, 2002
Randolph County
DWQ Project No. 020701
SR 2662B Site 2 (Willie Wright Road)
APPROVAL of 401 Water Quality Certification with Additional Conditions
Mr. W.F. Rosser, P.E., Division Engineer
NCDOT Division 8
P.O. Box 1067
Aberdeen, NC 28315
Dear Mr. Rosser:
You have our approval, in accordance with the attached conditions and those listed below, to impact
64 linear feet of an unnamed tributary to Back Branch in order to improve SR 2662 (Willie Wright
Road) in Randolph County. The project must be constructed in accordance with your application
dated April 29, 2002 (received May 7, 2002). After reviewing your application, we have decided that
this fill is covered by General Water Quality Certification No. 3375, corresponding to the U.S. Army
Corps of Engineers Nationwide Permit Number 14. In addition, you must acquire any other federal,
state or local permits before you proceed with your project including (but not limited to) Sediment
and Erosion Control, Non-Discharge and Water Supply Watershed regulations. This approval will
expire with the accompanying 404 permit unless otherwise specified in the Water Quality
Certification.
This approval is valid solely for the purpose and design described in your application (unless
modified below). Should your project change, you must notify the DWQ in writing and submit a new
application. If the property is sold, the new owner must be given a copy of this Certification and
approval letter, and is thereby responsible for complying with all the conditions. If total wetland fills
for this project (now or in the future) exceed one acre, or of total impacts to streams (now or in the
future) exceed 150 linear feet, compensatory mitigation may be required as described in 15A NCAC
2H .0506 (h) (6) and (7). For this approval to be valid, you must follow the conditions listed in the
attached certification and any additional conditions listed below.
1. Riparian vegetation must be reestablished within the construction limits of the project by the end
of the growing season following completion of construction.
2. NCDOT is encouraged to use existing on-site vegetation and materials for stream bank
stabilization and to minimize the use of rip rap.
3. The dimension, pattern, and profile of the stream and floodplain above and below the structure
shall not be modified by widening the stream channel or reducing the depth of the stream.
4. All work shall be performed during low flow conditions.
5. Heavy equipment must be operated from the banks rather than in the stream channel in order to
minimize sedimentation and reduce the likelihood of introducing other pollutants into the stream.
6. All mechanized equipment operated near surface waters must be regularly inspected and
maintained to prevent contamination of stream waters from fuels, lubricants, hydraulic fluids, or
other toxic materials.
7. Upon completion of the project, the NCDOT shall complete and return the enclosed "Certificate
of Completion" form to notif" NCDWO when all work included in the &401 Certification has
North Carolina Division of Water Quality, 401 Wetlands Certification Unit,
1650 Mail Service Center, Raleigh, NC 27699-1650 (Mailing Address)
2321 Crabtree Blvd., Raleigh, NC 27604-2260 (Location)
919-733-1786 (phone), 919-733-6893 (fax), http://h2o.enr.state.nc.us/ncwetlands/
been completed. The responsible party shall complete the attached form and return it to the
401/Wetlands Unit of the NC Division of Water Quality upon completion of the project.
If you do not accept any of the conditions of this certification, you may ask for an adjudicatory
hearing. You must act within 60 days of the date that you receive this letter. To ask for a hearing,
send a written petition which conforms to Chapter 150B of the North Carolina General Statutes to the
Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, N.C. 27699-6714. This
certification and its conditions are final and binding unless you ask for a hearing.
This letter completes the review of the Division of Water Quality under Section 401 of the Clean
Water Act. If you have any questions, please telephone Ms. Cynthia Van Der Wiele at 919.733.5715
or Ms. Jennifer Frye of the Winston-Salem Regional Office at 336.771.4600.
Sincerely,
7 Gregory J. Thorpe, Ph.D.
Acting Director
Attachment
cc: Wilmington District Corps of Engineers
Richard Spencer, USACE Wilmington Field Office
NCDWQ Winston-Salem Regional Office
Central Files
File Copy
Office Use Only:
USACE Action ID No.
DWQ No.
Form Version October 2001
020721D
If any particular item is not applicable to this project, please enter "Not Applicable" or "N/A" rather than
leaving the space blank.
1. Processing FILE COPI
Check all of the approval(s) requested for this project:
® Section 404 Permit
F] Section 10 Permit
® 401 Water Quality Certification
Riparian or Watershed Buffer Rules
` 7 20?1Z ?
MAY - ,
l?
a..-.N!4`tIANDSpRpUP
2. Nationwide, Regional or General Permit Number(s) Requested: Nationwide #14
If this notification is solely a courtesy copy because written approval for the 401 Certification
is not required, check here: ?
4. If payment into the North Carolina Wetlands Restoration Program (NCWRP) is proposed for
mitigation of impacts (see section VIII - Mitigation), check here:
II. Applicant Information
Owner/Applicant Information
Name: North Carolina Department of Transportation
Mailing Address: W. F. Rosser, P.E., Division Engineer
North Carolina Department of Transportation. Division 8
P.O. Box 1067
Aberdeen. North Carolina 28315
Telephone Number: 910-944-2344 Fax Number:_ 910-944-5623
E-mail Address:_ brosser a dot.state.nc.us
2. Agent Information (A signed and dated copy of the Agent Authorization letter must be
attached if the Agent has signatory authority for the owner/applicant.)
Name: R Thomas McManus, Jr.. County Maintenance Engineer
Company Affiliation: NC Department of Transportation
Mailing Address: 948 Southmont Drive
Asheboro. NC 27203
Telephone Number: [phone] Fax Number: 336-625-0146
E-mail Address: _tmcmanus a dot. state. nc us
PAYMENT
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III. Project Information
Attach a vicinity map clearly showing the location of the property with respect to local
landmarks such as towns, rivers, and roads. Also provide a detailed site plan showing property
boundaries and development plans in relation to surrounding properties. Both the vicinity map
and site plan must include a scale and north arrow. The specific footprints of all buildings,
impervious surfaces, or other facilities must be included. If possible, the maps and plans should
include the appropriate USGS Topographic Quad Map and NRCS Soil Survey with the property
boundaries outlined. Plan drawings, or other maps may be included at the applicant's discretion,
so long as the property is clearly defined. For administrative and distribution purposes, the
USACE requires information to be submitted on sheets no larger than 11 by 17-inch format;
however, DWQ may accept paperwork of any size. DWQ prefers full-size construction
drawings rather than a sequential sheet version of the full-size plans. If full-size plans are
reduced to a small scale such that the final version is illegible, the applicant will be informed that
the project has been placed on hold until decipherable maps are provided.
1. Name of project: SR 2903 (Osborn Mill Road) S74c 2
2. T.I.P. Project Number or State Project Number (NCDOT Only): 6.572055T
3. Property Identification Number (Tax P1N:
4. Location
County: Randolph Nearest Town: Asheboro
Subdivision name (include phase/lot number):
Directions to site (include road numbers, landmarks, etc.): Take Highway 42 south from
Asheboro 10 miles, turn right on Old NC Highway 13 (SR 2845). Go 1.3 miles. turn left
on Kemp Mill Road (SR 2911) 0.3 miles, turn right onto Osborn Mill Road (SR 2903)
5. Site coordinates, if available (UTM or Lat/Long): See Attached Sheet
(Note - If project is linear, such as a road or utility line, attach a sheet that separately lists the
coordinates for each crossing of a distinct waterbody.)
6. Describe the existing land use or condition of the site at the time of this application:
Unpaved Secondary Road pipe crossing
7. Property size (acres): N/A Roadway
8. Nearest body of water (stream/river/sound/ocean/lake): Bachelor Creek
9. River Basin: Cape Fear
(Note - this must be one of North Carolina's seventeen designated major river basins. The
River Basin map is available at http://h2o.enr.state.nc.us/admin/maps/.)
-6-
10. Describe the purpose of the proposed work: Pipe replacement and upgrade in coniunction
with Secondan Road Improvement Prgiect. Grade. Drain. Base. Pave and Erosion Control
on SR 2903 (Osborn Mill Road) from Begin Survey (End of Pavement) to SR 2911 (Kemp
Mill Road)
11. List the type of equipment to be used to construct the project: Trace Hoe. Dozer, Pan.
Back hoe, Pan. Compactor. and Motor Grader
12. Describe the land use in the vicinity of this project: Private homes and farms.
IV. Prior Project History
If jurisdictional determinations and/or permits have been requested and/or obtained for this
project (including all prior phases of the same subdivision) in the past, please explain. Include
the USACE Action ID Number, DWQ Project Number, application date, and date permits and
certifications were issued or withdrawn. Provide photocopies of previously issued permits,
certifications or other useful information. Describe previously approved wetland, stream and
buffer impacts, along with associated mitigation (where applicable). If this is a NCDOT project,
list and describe permits issued for prior segments of the same T.I.P. project, along with
construction schedules.
V. Future Project Plans
Are any future permit requests anticipated for this project? If so, describe the anticipated work,
and provide justification for the exclusion of this work from the current application:
N/A
VI. Proposed Impacts to Waters of the United States/Waters of the State
It is the applicant's (or agent's) responsibility to determine, delineate and map all impacts to
wetlands, open water, and stream channels associated with the project. The applicant must also
provide justification for these impacts in Section VII below. All proposed impacts, permanent
and temporary, must be listed herein, and must be clearly identifiable on an accompanying site
plan. All wetlands and waters, and all streams (intermittent and perennial) must be shown on a
delineation map, whether or not impacts are proposed to these systems. Wetland and stream
evaluation and delineation forms should be included as appropriate. Photographs may be
included at the applicant's discretion. If this proposed impact is strictly for wetland or stream
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mitigation, list and describe the impact in Section VIII below. If additional space is needed for
listing or description, please attach a separate sheet.
1. Wetland Impacts
Wetland Impact
Site Number
(indicate on map)
Type of Impact* Area of
Impact
(acres) Located within
100-year Floodplain**
(yes/no) Distance to
Nearest Stream
(linear feet)
Type of Wetland***
None

' List each impact separately and identify temporary impacts. Impacts include, but are not limited to: mechanized clearing, grading, fill,
excavation, flooding, ditching/drainage, etc. For dams, separately list impacts due to both structure and flooding.
'• 100-Year floodplains are identified through the Federal Emergency Management Agency's (FEMA) Flood Insurance Rate Maps
(FIRM), or FEMA-approved local floodplain maps. Maps are available through the FEMA Map Service Center at 1-800-358-9616, or
online at httn://www.fema,ggv.
List a wetland type that best describes wetland to be impacted (e.g., freshwater/saltwater marsh, forested wetland, beaver pond,
Carolina Bay, bog, etc.)
List the total acreage (estimated) of existing wetlands on the property:
Total area of wetland impact proposed:
2. Stream Impacts, including all intermittent and perennial streams
Stream Impact
Site Number
(indicate on map)
Type of Impact* Length of
Impact
(linear feet)
Stream Name** Average Width
of Stream
Before Impact Perennial or
Intermittent'?
(please specify)
1 Permanent Pipe 60' UT of Bachelor Creek 2' I

* List each impact separately and identify temporary impacts. Impacts include, but are not limited to: culverts and associated rip-rap,
dams (separately list impacts due to both structure and flooding), relocation (include linear feet before and after, and net loss/gain),
stabilization activities (cement wall, rip-rap, crib wall, gabions, etc.), excavation, ditching/straightening, etc. If stream relocation is
proposed, plans and profiles showing the linear footprint for both the original and relocated streams must be included.
** Stream names can be found on USGS topographic maps. If a stream has no name, list as UT (unnamed tributary) to the nearest
downstream named stream into which it flows. USGS maps are available through the USGS at 1-800-358-9616, or online at
www.uses.cov. Several intemet sites also allow direct download and printing of USGS maps (e.g., www.topozone.com,
www.manauest.com, etc.).
Cumulative impacts (linear distance in feet) to all streams on site: 60'
-8-
3. Open Water Impacts, including Lakes, Ponds, Estuaries, Sounds, Atlantic Ocean and any
other Water of the U.S.
Open Water Impact
Site Number
(indicate on map)
Type of Impact* Area of
Impact
(acres)
Name Wate)
(if applicable) Type of Waterbody
(lake, pond, estuary, sound,
bay, ocean, etc.)

List eacn impact separately and identity temporary impacts. impacts include, but are not limited to: till, excavation, dredging,
flooding, drainage, bulkheads, etc.
4. Pond Creation
If construction of a pond is proposed, associated wetland and stream impacts should be
included above in the wetland and stream impact sections. Also, the proposed pond should
be described here and illustrated on any maps included with this application.
Pond to be created in (check all that apply): ? uplands F? stream E] wetlands
Describe the method of construction (e.g., dam/embankment, excavation, installation of
draw-down valve or spillway, etc.): N/A
Proposed use or purpose of pond (e.g., livestock watering, irrigation, aesthetic, trout pond,
local stormwater requirement, etc.):
Size of watershed draining to pond: Expected pond surface area:
VII. Impact Justification (Avoidance and Minimization)
Specifically describe measures taken to avoid the proposed impacts. It may be useful to provide
information related to site constraints such as topography, building ordinances, accessibility, and
financial viability of the project. The applicant may attach drawings of alternative, lower-impact
site layouts, and explain why these design options were not feasible. Also discuss how impacts
were minimized once the desired site plan was developed. If applicable, discuss construction
techniques to be followed during construction to reduce impacts.
N/A
VIII. Mitigation
DWQ - In accordance with 15A NCAC 2H .0500, mitigation may be required by the NC
Division of Water Quality for projects involving greater than or equal to one acre of impacts to
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freshwater wetlands or greater than or equal to 150 linear feet of total impacts to perennial
streams.
USACE - In accordance with the Final Notice of Issuance and Modification of Nationwide
Permits, published in the Federal Register on March 9, 2000, mitigation will be required when
necessary to ensure that adverse effects to the aquatic environment are minimal. Factors
including size and type of proposed impact and function and relative value of the impacted
aquatic resource will be considered in determining acceptability of appropriate and practicable
mitigation as proposed. Examples of mitigation that may be appropriate and practicable include,
but are not limited to: reducing the size of the project; establishing and maintaining wetland
and/or upland vegetated buffers to protect open waters such as streams; and replacing losses of
aquatic resource functions and values by creating, restoring, enhancing, or preserving similar
functions and values, preferable in the same watershed.
If mitigation is required for this project, a copy of the mitigation plan must be attached in order
for USACE or DWQ to consider the application complete for processing. Any application
lacking a required mitigation plan or NCWRP concurrence shall be placed on hold as
incomplete. An applicant may also choose to review the current guidelines for stream restoration
in DWQ's Draft Technical Guide for Stream Work in North Carolina, available at
http://h2o.enr.state.nc,us/ncwetlands/strmiaide,html.
1. Provide a brief description of the proposed mitigation plan. The description should provide
as much information as possible, including, but not limited to: site location (attach directions
and/or map, if offsite), affected stream and river basin, type and amount (acreage/linear feet)
of mitigation proposed (restoration, enhancement, creation, or preservation), a plan view,
preservation mechanism (e.g., deed restrictions, conservation easement, etc.), and a
description of the current site conditions and proposed method of construction. Please attach
a separate sheet if more space is needed.
N/A
2. Mitigation may also be made by payment into the North Carolina Wetlands Restoration
Program (NCWR.P) with the NCWRP's written agreement. Check the box indicating that
you would like to pay into the NCWRP. Please note that payment into the NCWRP must be
reviewed and approved before it can be used to satisfy mitigation requirements. Applicants
will be notified early in the review process by the 401/Wetlands Unit if payment into the
NCWRP is available as an option. For additional information regarding the application
process for the NCWRP, check the NCWRP website at hhup://h2o.enr.state,nc.us/=/index.hrm. If
use of the NCWRP is proposed, please check the appropriate box on page three and provide
the following information:
Amount of stream mitigation requested (linear feet):
Amount of buffer mitigation requested (square feet):
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IX.
Amount of Riparian wetland mitigation requested (acres):
Amount of Non-riparian wetland mitigation requested (acres):
Amount of Coastal wetland mitigation requested (acres):
Environmental Documentation (DWQ Only)
Does the project involve an expenditure of public funds or the use of public (federal/state/local)
land?
Yes ® No
If yes, does the project require preparation of an environmental document pursuant to the
requirements of the National or North Carolina Environmental Policy Act (NEPA/SEPA)?
Note: If you are not sure whether a NEPA/SEPA document is required, call the SEPA
coordinator at [phone] to review current thresholds for environmental documentation.
Yes F-1 No
If yes, has the document review been finalized by the State Clearinghouse? If so, please attach a
copy of the NEPA or SEPA final approval letter.
Yes F? No ?
X. Proposed Impacts on Riparian and Watershed Buffers (DWQ Only)
It is the applicant's (or agent's) responsibility to determine, delineate and map all impacts to
required state and local buffers associated with the project. The applicant must also provide
justification for these impacts in Section VII above. All proposed impacts must be listed herein,
and must be clearly identifiable on the accompanying site plan. All buffers must be shown on a
map, whether or not impacts are proposed to the buffers. Correspondence from the DWQ
Regional Office may be included as appropriate. Photographs may also be included at the
applicant's discretion.
Will the project impact protected riparian buffers identified within 15A NCAC 2B .0233
(Meuse), 15A NCAC 2B .0259 (Tar-Pamlico), 15A NCAC 213 .0250 (Randleman Rules and
Water Supply Buffer Requirements), or other (please identify )?
Yes F-1 No F-] If you answered "yes", provide the following information:
Identify the square feet and acreage of impact to each zone of the riparian buffers. If buffer
mitigation is required calculate the required amount of mitigation by applying the buffer
multipliers.
Zone* Impact
(square feet) Multiplier Required
Mitigation
1 3
2 1.5
Total
Gone 1 extends out .5U teet perpendicular troth near banK of cnannel; Gone 2 extends an
additional 20 feet from the edge of Zone 1.
If buffer mitigation is required, please discuss what type of mitigation is proposed (i.e., Donation
of Property, Conservation Easement, Riparian Buffer Restoration / Enhancement, Preservation or
Payment into the Riparian Buffer Restoration Fund). Please attach all appropriate information as
identified within 15A NCAC 2B .0242 or.0260.
XI. Stormwater (DWQ Only)
Describe impervious acreage (both existing and proposed) versus total acreage on the site.
Discuss stormwater controls proposed in order to protect surface waters and wetlands
downstream from the property.
Neither the current impervious cover (gravel road bed) nor the new proposed impervious cover
(asphalt pavement) will exceed 30% of the total site area Erosion control devices appropriate to
the site will be utilized on this project which may include silt fences. check dams and storm
water retaining basins
XII. Sewage Disposal (DWQ Only)
Clearly detail the ultimate treatment methods and disposition (non-discharge or discharge) of
wastewater generated from the proposed project, or available capacity of the subject facility.
XIII. Violations (DWQ Only)
Is this site in violation of DWQ Wetland Rules (15A NCAC 2H.0500) or any Buffer Rules?
Yes E] No
Is this an after-the-fact permit application?
Yes [] No
XIV. Other Circumstances (Optional):
It is the applicant's responsibility to submit the application sufficiently in advance of desired
construction dates to allow processing time for these permits. However, an applicant may
choose to list constraints associated with construction or sequencing that may impose limits on
work schedules (e.g., draw-down schedules for lakes, dates associated with Endangered and
Threatened Species, accessibility problems, or other issues outside of the applicant's control).
Applicant/Agent's Signature Date
(Agent's signature is valid only if an authorization letter from the applicant is provided.)
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STATE OF NORTH CAROLINA
DEPARTMENT OF TRANSPORTATION
MICHAEL F. EASLEY
GOVERNOR
Mr. Rob Ridings
Division Of Water Quality
401 Wetlands Unit
1650 Mail Service Center
Raleigh, NC 217699-1650
Dear Mr. Ridings:
Subject: Randolph County - SR 2903 Site 2 - Osborn Mill Road
LYNDO TIPPETT
SECRETARY
020720
In an effort to obtain the permits needed for pipe replacement on SR 2903 from end of pavement
to SR 2911 in Randolph County, we are providing the pre construction notification application
and the supporting materials.
A survey for the presence of Schweinitz's Sunflower (Helianthus Schweinitz) was conducted by
myself as part of the required minimum criteria check. No Schwienitz Sunflowers were found
within the road's right of way.
Any detours required for this project will be done off site.
To our knowledge there are No High Quality Waters or Outstanding Water Resources occurring
in the project area. We anticipate that these activities will be authorized under Nationwide Permit
Number 14.
This letter and a copy of the application materials will be submitted to N.C. Division of Water
Quality, U.S. Fish and Wildlife Service, and U.S. Army Corps. of Engineers for approval.
If you have any questions or comments, or need additional information, please contact our office
at [phone]. Thank you for your cooperation in this matter.
Sincerely,
Z?2?
Art C. King
Division Environmental Officer
cc: W. F. Rosser, PE
J. Picklesimer, PE
R. T. McManus, Jr.
File
DIVISION OF HIGHWAYS
January 15, 2002
PAYMENT
RECEIVED
P.O. BOX 1067, ABERDEEN, NORTH CAROLINA 28315
Pt [ONE [phone] FAX [phone]
020720

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STATE OF NORTH CAROLINA
DEPARTMENT OF TRANSPORTATION
MICHAEL F. EASLEY DIVISION OF HIGHWAYS
GOVERNOR
May 3, 2002
020720
Mr. Rob Riding
Division of Water Quality
401 Wetlands Unit
1650 Mail Service Center
Raleigh, North Carolina 27699-1650
Dear Mr. Ridings:
Enclosed is the permit application for the following project:
LYNDo TIPPETT
SECRETARY

MAY - 7 200>

Description: SR 2903 Site 2- Randolph County
Work Order #: 6.572055T
TIP Number: N/A PArMENl
Fee Category: $200.00 RECEIVED
Please submit for automated payment.
Sincerely,
Art C. King
Division Environmental Officer
?2-672
U.S. ARMY CORPS OF ENGINEERS
WILMINGTON DISTRICT
Action ID: 200200791 TIP No: State Project No: 6.572055T County: Randolph
GENERAL PERMIT (REGIONAL AND NATIONWIDE) VERIFICATION
Applicant: North Carolina Department of Transportation (; ( a
Address: W.F. Rosser, P.E., Division Engineer
North Carolina Department of Transportation .1JN MV?
Division 8
P.O. Box 1067
Aberdeen, North Carolina 28315 tint 111I`klns 6rtouI'?
1V
•' 4.11 4 _.. •.. •
Telephone Number: [phone]
Size and Location of project (waterway, road name/number, town, etc.): 44 linear feet of 36-inch RCP culvert
at centerline station 47+70 on SR 2903 in an unnamed tributary to Bachelor Creek in Randolph County, North
Carolina.
Description. of Activity: To replace 30 linear feet of existing 15-inch CMP culvert with 44 linear feet of 36-inch RCP
culvert with 2 FES for a total length of 60 linear feet. Traffic will be detoured onto existing roadways during
construction.
Applicable Law. X Section 404 (Clean Water Act, 33 U.S.C. 1344)
Section 10 (River and Harbor Act of 1899)
Authorization: 14 Nationwide Permit Number
Regional General Permit Number
Your work is authorized by this Regional General (RGP) or Nationwide (NWP) Permit provided it is accomplished
in strict accordance with the attached conditions and your submitted plans. If your activity is subject to Section 404
(if Section 404 block above is checked), before beginning work you must also receive a Section 401 water quality
certification from the N.C. Division of Environmental Management, telephone [phone]. For any activity
within the twenty coastal counties, before beginning work you must contact the N.C. Division of Coastal
Management, telephone [phone].
Please read and carefully comply with the attached conditions of the RGP or NWP. Any violation of the conditions
of the RGP or NWP referenced above may subject the permittee to a stop work order, a restoration order, and/or
appropriate legal action.
This Department of the Army RGP or NWP verification does not relieve the permittee of the responsibility to obtain
any other required Federal, State, or local approvals/permits. The permittee may need to contact appropriate State
and local agencies before beginning work.
If there are any questions regarding this authorization or any of the conditions of the RGP or NWP, please contact
the Corps Regulatory Official specified below.
Date 12 June 2002___--
Corps Regulatory Official Richard K.SSUenc -Telephone No. [phone]
Expiration Date of Veritication_12 June 2005
CF: NCDOT, Art King (Division 8)
NDDWQ, Cynthia Van Der Wiele?
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I69
Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices 2077
New York
New York District Engineer, ATTN: CENAN-
OP-R, 26 Federal Plaza, New York, NY
10278-0090
North Carolina
Wilmington District Engineer, ATTN:
CESWW-RG, P.O. Box 1890, Wilmington,
NC 28402-1890
North Dakota
Omaha District Engineer, ATTN: CENWO-
OP-R, 106 South 15th Street, Omaha, NE
68102-1618
Ohio
Huntington District Engineer, ATTN:
CELRH-OR-F, 502 8th Street, Huntington,
WV 25701-2070
Oklahoma
Tulsa District Engineer, A"ITN: CESWT-PE-
R, 1645 S. 101st East Ave, Tulsa, OK
74128-4609
Oregon
Portland District Engineer, ATTN: CENWP-
PE-G, P.O. Box 2946, Portland, OR 97208-
2946
Pennsylvania
Baltimore District Engineer, ATTN: CENAB-
OP-R, P.O. Box 1715, Baltimore, MD
21203-1715
Rhode Island
New England District Engineer, ATTN:
CENAE-R, 696 Virginia Road, Concord,
MA 01742-2751
South Carolina
Charleston District Engineer, ATTN: CESAC-
CO-P, P.O. Box 919, Charleston, SC
29402-0919
South Dakota
Omaha District Engineer, ATTN: CENWO--
OP-R, 106 South 15th Street, Omaha, NE
68102-1618
Tennessee
Nashville District Engineer, ATTN: CELRN-
OP-F, P.O. Box 1070, Nashville, TN
37202-1070
Texas
Ft. Worth District Engineer, ATTN: CESWF-
PER-R, P.O. Box 17300, Ft. Worth, TX
76102-0300
Utah
Sacramento District Engineer, ATTN:
CESPK-CO-R, 1325 J Street, CA 95814--
2922
Vermont
New England District Engineer, ATTN:
CENAE-R, 696 Virginia Road, Concord,
MA 01742-2751
Virginia
Norfolk District Engineer, AI TN: CENAO-
OP--R, 803 Front Street, Norfolk, VA
23510-1096
Washington
Seattle District Engineer, ATTN: CF.NIVS--
OP-RG, P.O. Box 3755, Seattle, WA 98124-
2255
West Virginia
Huntington District Engineer, ATTN:
CELRII-OR-F, 502 8th Street, Iuntington,
WV 25701-2070
Wisconsin
St. Paul District Engineer, AT'1 N: CEIviVP--
CO-R, 190 Fifth Street East, St. Paul, MN
551P1-1638
Wyoming
Omaha District Engineer, ATTN: CENWO-
OP-R, 106 South 15th Street, Omaha, NE
68102-1618
District of Columbia
Baltimore District Engineer, ATTN: CENAB-
OP-R, P.O. Box 1715, Baltimore, MD
21203-1715
Pacific Territories (American Samoa, Guam,
& Commonwealth of, the Northern Mariana
Islands)
Honolulu District Engineer, ATTN: CEPOH-
EC-R, Building 230, Fort Shafter,
Honolulu, Ell 96858-5440
Puerto Rico & Virgin Islands
Jacksonville District Engineer, ATTN:
CESAJ-CO-R, P.O. Box 4970, Jacksonville,
FL 32202-4412
Dated: January 4, 2002.
Approved:
Robert 1-I. Griffin,
Brigadier General, U.S. Army, Director of Civil
Works.
Nationwide Permits, Conditions,
Further Information, and Definitions
A. Index of Nation Wide Permits,
Conditions, Further Information, and
Definitions
Nationwide Permits
1. Aids to Navigation
2. Structures in Artificial Canals
3. Maintenance
4. Fish and Wildlife Harvesting,
Enhancement, and Attraction Devices and
Activities
5. Scientific Measurement Devices
6. Survey Activities
7. Outfall Structures and Maintenance
8. Oil and Gas Structures
9. Structures in Fleeting and Anchorage
Areas
10. Mooring Buoys
11. Temporary Recreational Structures
12. Utility Line Activities
13. Bank Stabilization
14. Linear Transportation Projects
15. U.S. Coast Guard Approved Bridges
16. Return Water From Upland Contained
Disposal Areas
17. Hydropower Projects
18. Minor Discharges
19. Minor Dredging
20. Oil Spill Cleanup
21. Surface Coal Mining Activities
22. Removal of Vessels
23. Approved Categorical Exclusions
24. State Administered Section 40,1 Programs
25. Structural Discharges
26.[Reservedl
27. Stream and Wetland Restoration
Activities
28. Modifications of Existing Marinas
29. Single-family Housing
30. Moist Soil Management for Wildlife
31. Maintenance of Existing Flood Control
Facilities
32. Completed Enforcement Actions
33. Temporary Construction, Access and
Dewatering
34. Cranberry Production Activities
35. Maintenance Dredging of Existing Basins
36. Boat Ramps
37. Emergency Watershed Protection and
Rehabilitation
38 Cleanup of Hazardous and Toxic Waste
39. Residential, Commercial, and
Institutional Developments
40. Agricultural Activities
41. Reshaping Existing Drainage Ditches
42. Recreational Facilities
43. Stormwater Management Facilities
44. Mining Activities
Nationwide Permit General Conditions
1. Navigation
2. Proper Maintenance
3. Soil Erosion and Sediment Controls
4. Aquatic Life Movements
5. Equipment
5. Regional and Case-by-Case Conditions
7. Wild and Scenic Rivers
8. Tribal Rights
9. Water Quality
10. Coastal Zone Management
11. Endangered Species
12. Historic Properties
13. Notification
14. Compliance Certification
15. Use of Multiple Nationwide Permits.
16. Water Supply Intakes
17. Shellfish Beds
18. Suitable Material
19. Mitigation
20, Spawning Areas
21. Management of Water Flows
22. Adverse Effects from Impoundments
23. Waterfowl Breeding Areas
24. Removal of Temporary Fills
25. Designated Critical Resource Waters
26. Fills Within 100-year Floodplains
27. Construction Period
Further Information
Definitions
Best Management Practices (Mlv[Ps)
Compensatory Mitigation
Creation
Enhancement
Ephemeral Stream
Farur Tract
Flood Fringe
Floodway
Independent Utility
Intermittent Stream
Loss of Waters of the US
Non-tidal Wetland
Open Water
Perennial Stream
Permanent Above-grade Fill
Preservation
Restoration
Riffle and Pool Complex
2078 Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices
Single and Complete project
Stormwater Management bridges, culverted road crossings, water
intake structures
etc
) and th done primarily to obtain fill for any

Stormwater Management Facilities
Stream Bed ,
.
e
placement of new or additional riprap t
restoration activities. The dischatge of
o dredged or fill material and all related
Stream Channelization protect the structure, provided the work needed to restore the upland must
Tidal Wetland
Vegetated Buffer perrnittee notifies the District Engineer
in accordance with General Condition be part of a single and complete project.
This permit cannot be used in
Vegetated Shallows
Waterbody 13. The removal of sediment is limited
to the minimum necessary to restore th conjunction with NWP 18 or NWP 19 to
d

B. Nationwide Permits e
waterway in the immediate vicinity of restore
amaged upland areas. This
permit cannot be used to reclaim

1. Aids to Navigation. The placement the structure to the approximate
dimensions that existed wh
th historic lands lost, over an extended

of aids to navigation and Regulatory
markers which are approved by and en
e
structure was built, but cannot extend period, to normal erosion processes.
This permit does not authorize

installed in accordance with the
i
f furthet• than 200 feet in an direction
y
from the structure. The placement of ri
maintenance dredging for the primary
requ
rements o
the U.S. Coast Guard
(USCG) (See 33 CFR, chapter I,
R, p
rap must be the minimum necessary to purpose of navigation and beach
restoration. This permit does not
subchapter C part
(Section 10)
2. Structures in Artificial Canals. protect the structure or to ensure the
safety of the structure. All excavated authorize new stream channelization or
stream relocation projects. Any work
Structures constructed in artificial
canals within principally residential materials must be deposited and
retained in an upland area unless authorized by this permit must not
cause more than minimal de
radation of
developments where the connection of otherwise specifically approved by the g
water quality, more than minimal
the canal to navigable water of the US
has been previously authorized (s
33 District Engineer under separate
authorization. Any bank stabilization changes to the flow characteristics of the
str
i
ee
CFR 322.5(8)). (Section 10)
measures not directly associated with eam, or
ncrease flooding (See
General Conditions 9 and 21)
(Sections
*3. Maintenance. Activities related to: the structure will require a separate .
10 and 404)
(i) The repair, rehabilitation, or
replacement of any previously authorization from the District Engineer.
(iii) Discharges of dred
ed or fill Vote: This MVP authorizes the repair,
h
bili
i

authorized, currently serviceable, g
material, including excavation, into all re
a
tat
on, or replacement of any
previously authorized structure or fill that
structure, or fill, or of any currently waters of the US for activities associated does not qualify for the Section 404(f)
serviceable structure or fill authorized with the restoration of upland areas exemption for maintenance.
by 33 CFR 330.3, provided that the damaged by a storm, flood, or other '4. Fish and Wildlife Harvesting

structure or fill is not to be put to uses
differing from those uses specified or
discrete event, including the
construction, placement, or installation ,
Enhancement, and Attraction Devices
and Activities. Fish and wildlife
contemplated for it in the original
permit or the most recently authorized of upland protection structures and
minor dredging to remove obstructions harvesting devices and activities such as
pound nets, crab traps
crab dredgin

modification. Minor deviations in the
'
in a water of the US. (Uplands lost as ,
g,
eel pots, lobster traps, duck blinds
clam
structure
s configuration or filled area
including those due to changes in a result of a storm, flood, or other
discrete event can be re
laced with
t ,
and oyster digging; and small fish
attra
ti
d
i

materials, construction techniques, or p
ou
a Section 404 permit provided the c
on
ev
ces such as open water
fish concentrators (sea kites, etc.). This
current construction codes or safety
standards which are necessary to make uplands are restored to their original
pre-event location. This NWP is for the NWP authorizes shellfish seeding
provided this activity does not occur in
repair, rehabilitation, or replacement are activities in waters of the US associated wetlands or sites that support
permitted, provided the adverse
environmental effects resulting from with the replacement of the uplands.)
The permittee must notify the District submerged aquatic vegetation (including
sites where submerged aquatic
such repair, rehabilitation, or
replacement are minimal. Currently Engineer, in accordance with General
Condition 13, within 12-months of the vegetation is documented to exist, but
may not be present in a given year.)

serviceable means useable as is or with
date of the darnage and the work must .
This NWP does not authorize artificial
some maintenance, but not so degraded commence, or be under contract to reefs or impoundments and semi-
as to essentially require reconstruction,
This NWP authorizes the repair commence, within two years of the date
of the dam
Th
i impoundments of waters of the US for
,
rehabilitation, or replacement of those age.
e perm
ttee should
provide evidence, such as a recent the culture or holding of motile species
such as lobster or the use of covered
structures or fills destroyed or damaged
by storms, floods, fire or other discrete topographic survey or photographs, to
justify the extent of the proposed oyster trays or clam racks. (Sections 10
and 404)
events, provided the repair,
rehabilitation, or replacement is restoration. The restoration of the
damaged areas cannot exc
d th , 5. Scientific Measurement Devices.

commenced, or is under contract to ee
e
contours, or ordinary high water mark, Devices, whose purpose is to measure
and record scientific data such as staff
commence, within two years of the date
of their destruction or damage. In cases that existed before the darnage. The
District Engineer retains the right to gages, title gages, water recording
devices
water
ualit
testi
d
of catastrophic events, such as
hurricanes or tornadoes, this two-year determine the extent of the pre-existing
conditions and the extent of an ,
q
y
ng an
improvement devices and similar
t
t
S
ll

limit may be waived by the District y
restoration work authorized by this s
ruc
ures.
ma
weirs and flurries
constructed primarily to record water
Engineer, provided the perrnittee can
demonstrate funding, contract, or other permit. Minor dredging to remove
obstructions from the adjacent quantity and velocity are also
th
i
d

similar delays.
(ii) Dischar
es of d
d
d
fill
waterbody is limited to 50 cubic yards au
or
ze
provided the discharge is
limited to 25 cubic yards and further for
g
re
ge
or
material, including excavation, into all below the plane of the ordinary high
water mark, and is limited to the discharges of 10 to 25 cubic yards
provided the perrnittee notifies the
waters of the US to remove accumulated
sediments and debris in the vicinity of, amount necessary to restore the pre-
existing bottom contours of th District Engineer in accordance with the
"
"

and within, existing structures (e,g., e
waterbody. The dredging may riot be Notification
General Condition.
(Sections 10 and 404)
'Federal Register/Vol. 67, No. 10 / Tuesday, January 15, 2002/Notices 2079
' 6. Survey Activities. Survey activities
including core sampling, seismic
exploratory operations, plugging of
seismic shot holes and other
exploratory-type bore holes, soil survey,
sampling, and historic resources
surveys, Discharges and structures
associated witli the recovery of historic
resources are not authorized by this
MVP. Drilling and the discharge of
excavated material from test wells for
oil and gas exploration is riot authorized
by this NWP; the plugging of such wells
is authorized. Fill placed for roads, pads
and other similar activities is not
authorized by this NWP. The MVP does
not authorize any permanent structures.
The discharge of drilling mud and
cuttings may require a permit under
section 402 of the CWA. (Sections 10
and 404)
-7. Outfall Structures and
Maintenance, Activities related to:
(i) Construction of outfall structures
and associated intake structures where
the effluent from the outfall is
authorized, conditionally authorized, or
specifically exempted, or are otherwise
in compliance with regulations issued
under the National Pollutant Discharge
Elimination System Program (Section
402 of the CWA), and
(ii) Maintenance excavation,
including dredging, to remove
accumulated sediments blocking or
restricting outfall and intake structures,
accumulated sediments from small
impoundments associated with outfall
and intake structures, and accumulated
sediments from carrals associated with
outfall and intake structures, provided
that the activity meets all of the
following criteria:
a. The permittee notifies the District
Engineer in accordance with General
Condition 13;
b. The amount of excavated or
dredged material must be the minimum
necessary to restore the outfalls, intakes,
small impoundments, and canals to
original design capacities and design
configurations (i.e., de ith and width);
c. The excavated or dredged material
is deposited and retained at an upland
site, unless otherwise approved by the
District Ingineer under separate
authorization; and
d. Proper soil erosion and sediment
control measures are used to minimize
reentry of sediments into waters of the
t1S.
The construction of intake structures
is not authorized by this NWP, unless
they are directly associated with an
authorized outfall structure. For
maintenance excavation and dredging to
remove accuunulatecl Wdirnents, the
notification must include information
regarding the original design capacities
and configurations of the facility and
e presence of special aquatic sites
e.g., vegetated shallows) in the vicinity
of the proposed work. (Sections 10 and
404)
8. Oil and Gas Structures. Structures
for the exploration, production, and
transportation of oil, gas, and minerals
on the outer continental shelf within
areas leased for such purposes by the
DOI, Minerals Management Service
(MMSY'Such structures shall not be
placed within the limits of any
designated shipping safety fairway or
traffic separation scheme, except
temporary anchors that comply yvith the
fairway regulations in 33 CFR 322.5(1).
(Where such limits have not been
designated, or where changes are
anticipated, District Engineers will
consider asserting discretionary
authority in accordance with 33 CFR
330.4(e) and will also review such
proposals to ensure they comply with
the provisions of the fairway regulations
in 33 CFR 322.5(1). Any Corps review
wider this permit will be limited to the
effects on navigation and national
security in accordance with 33 CFR,
.322.5(0). Such structures will not be
placed in established danger zones or
restricted areas as designated in 33 CFR
part 334: nor will such structures be
permitted in EPA or Corps designated
dredged material disposal areas.
(Section 10)
' 9. Structures in Fleeting and
Anchorage Areas. Structures, buoys,
floats and other devices placed within
anchorage or fleeting areas to facilitate
moorage of vessels where the USCG has
established such areas for that purpose.
(Section 10)
, 10. Mooring Buovs. Non-commercial,
single-boat, mooring buoys. (Section 10)
11. Temporary Recreational
Structures. 't'emporary buoys, markers,
small floating docks, and similar
structures placed for recreational use
during specific events such as water
skiing competitions and boat races or
seasonal use provided that such
structures are removed within 30 days
after use has been discontinued. At
Corps of Engineers reservoirs, the
reservoir manager must approve each
huoy or marker individually. (Section
10)
.12. Utility Line Activities. Activities
required For the construction,
maintenance and repair of utility lines
and associated facilities in waters of the
US as follows:
(i) Utility lines: The construction,
nminten,ulce, or repair Of utility lines,
including outfall and intake structures
and the associated excavation, backfill,
or bedding for the utility lines, in all
waters of the US, provided there is no
change in preconstruction contours, A
"utility line" is defined as any pipe or
pipeline for the transportation of any
gaseous, liquid, liquescent, or slurs:
substance, for any purpose, and any
cable, line, or wire for the transmission
for any purpose of electrical energy,
telephone, and telegraph messages, and
radio and television communication
(see Note 1, below). Material resulting
from trench excavation may be
temporarily sidecast (up to three
months) into waters of the US, provided
that the material is not placed in such
a manner that it is dispersed by currents
or other forces. The District Engineer
may extend the period of temporary side
casting riot to exceed a total of 180 days,
where appropriate, In wetlands, the top
6" to 12" of the trench should normally
be backfilled'with topsoil from the
trench. Furthermore, the trench cannot
be constructed in such a manner as to
drain waters of the US (e.g., backfillin;
with extensive gravel layers, creating a
french drain effect). For example, utility
line trenches can be backfilled with clay
blocks to ensure that the trench does not
drain the waters of the US through
which the utility line is installed. Any
exposed slopes and stream banks must
be stabilized immediately upon
completion of the utility line crossing of
each waterbody.
(ii) Utility line substations: The
construction, maintenance, or
expansion of a substation facility
associated with a power line or utility
line in non-tidal waters of the US,
excluding non-tidal wetlands adjacent
to tidal waters, provided the activity
does not result in the loss of greater than
1/2-acre of non-tidal waters of the US.
(iii) Foundations for overhead utility
line towers, poles, and anchors: The
construction or maintenance of
foundations for overhead utility line
towers, poles, and anchors in all waters
of the US, provided the foundations are
the minimum size necessary and
separate footings for each tower leg
(rather than a larger single pad) are used
where feasible.
(iv) Access roads: The construction of
access roads for the construction and
maintenance of utility lines, including
overhead power lines and utility line
substations, in non-ticlal waters of the
US, excluding non-tidal wetlands
adjacent to tidal waters, provided the
discharges do not cause the loss of
greater than '/ -acre of non-tidal waters
of the US. Access roads shall be the
nuiniunuin width necessary (see Note
below). Access roads must be
constructed so that the lenoth of the
road minimizes the adverse effects on
waters of the US and as near as possible
to preconstruction contours and

2080 - Federal Register/Vol. 67, No. 10/71uesday, lanuarv 15. 2002/Nolirree
elevations (e.g., at grade corduroy roads
or geotextile/gravel roads). Access road-
constructed above preconstruction
contours and elevations in waters of the
US must be properly bridged or
culverted to maintain surface flows.
The term "utility line" does not
include activities which drain a water o
the CIS, such as drainage tile, or french
drains; however, it does apply to pipes
conveying drainage from another area.
For the purposes of this NWP, the loss
of waters of the US includes the filled
area plus waters of the LIS that are
adversely affected by flooding,
excavation, or drainage as a result of the
project. Activities authorized by
paragraph (i) through (iv) may not
exceed a total of 1/•r-acre loss of waters
of the US. Waters of the US temporarily
affected by filling, flooding, excavation,
or drainage, where the project area is
restored to preconstruction contours
and elevation, is not included in the
calculation of permanent loss of waters
of the US. This includes temporary
construction mats (e.g., timber, steel,
geotextile) used during construction and
removed upon completion of the work.
Where certain functions and values of
waters of the US are permanently
adversely affected, such as the
conversion of a forested wetland to a
herbaceous wetland in the permanently
maintained utility line right-of-way,
mitigation will be required to reduce the
adverse effects of the project to the
minimal level.
Mechanized land clearing necessary
for the construction, maintenance, or
repair of utility lines and the
construction, maintenance and
expansion of utility line substations,
foundations for overhead utility lines,
and access roads is authorized, provided
the cleared area is kept to the minimum
necessary and preconstruction contours
are maintained as near as possible. Tire
area of waters of the US that is filled,
excavated, or flooded must be limited to
the minimum necessary to construct the
utility line, substations, foundations,
and access roads. Excess material must
be removed to upland areas
immediately upon completion of
construction. This NWP may authorize
utility lines in or affecting navigable
waters of the LIS even if there is no
associated discharge of dredged or fill
material (See 33 CFR part 322).
Notification: The perrnittee must
notify the District Engineer in
accordance with General Condition 13,
if any of the following criteria are nuet:
(a) Mechanized land clearing in a
forested wetland for the utility line
right-of-way;
(b) A Section 10 permit is required;
(c) The utility line in waters of the
s LIS, excluding overhead lines, exceeds
500 feet;
(d) The utility line is placed within a
jurisdictional area (i.e., water of the US)
and it runs parallel to a stream bed that
is within that jurisdictional area;
f (e) Discharges associated with the
construction of utility line substations
that result in the loss of greater than 1/.0
acre of waters of the US; or
(f) PeS manent access roads
constructed above grade in waters of the
LIS for a distance of more than 500 feet.
(g) Permanent access roads
constructed in waters of the US with
impervious materials. (Sections 10 and
404)
Note 1: Overhead utilitv lines constructed
over Section 10 waters and utility lines that
are routed in or under Section 10 waters
without a discharge of dredged or fill
material require a Section 10 permit; except
for pipes or pipelines used to transport
gaseous, liquid, liquescent, or slurry
substances over navigable waters of the US,
which are considered to be bridges, not
utility lines, and may require a permit from
the USCG pursuant to section 9 of the Rivers
and I larbors Act of 1899. However, any
discharges of dredged or fill material
associated with such pipelines will require a
Corps permit under Section 404.
Note 2: Access roads used for both
construction and maintenance may be
authorized, provided they meet the terms and
conditions of this NWP. Access roads used
solely for construction of the utility line must
be removed upon completion of the work and
the area restored to preconstruction contours,
elevations, and wetland conditions.
Temporary access roads for construction may
be authorized by NWP 33.
Note 3: Where the proposed utility line is
constructed or installed in navigable waters
of the US (i.e., Section 10 waters), copies of
the PCN and MVP verification will be sent
by the Corps to the National Occanic and
Atmospheric Administration (NOAA),
National Occan Service (NOS), for charting
the utility line to protect navigation.
•13. Bank Stabilization. Bank
stabilization activities necessary for
erosion prevention provided the activity
meets all of the following criteria:
a. No material is placed more than the
rruinimunl needed for erosion protection;
b. The bank stabilization activity is
less than 500 feet in length;
c. The activity will not exceed an
average of one cubic yard per running
foot placed along the bank below the
plane of tfue ordinary high water mark
or the high tide line;
d. No material is placed in any special
aquatic site, including wetlands;
e. No material is of the type, or is
placed in any location, or in any
manner, to impair surface water flow
into or out of any wetland area;
f. No material is placed in a manner
that will be eroded by normal or
expected high flows (properly anchored
trees and treetops may be used in low
energy areas); and,
g. The activity is part of a single and
complete project.
Bank stabilization activities in excess
of 500 feet in length or greater than an
average of one cubic yard per running
foot may be authorized if the perrnittee
notifies the District Engineer in
accordance with the "Notification"
General Condition 13 and the District
Engineer determines the activity
complies with the other terms and
conditions of the NWP and the adverse
environmeuutal effects are minimal both
individually and cumulatively. -['his
NWP may not be used for the
channelization of waters of tare US.
(Sections 10 and 404)
Q4. GinearTronsportation Projects.
Activities required for the construction,
expansion, modification, or
improvement of linear transportation
crossings (e.g,, highways, railways,
trails, airport runways, and taxiways) in
waters of the LIS, including wetlands, if
the activity meets the following criteria:
a. This NWP is subject to the
following acreage limits:
(1) For linear transportation projects
in non-tidal waters, provided the
discharge does not cause the loss of
greater than 1/2.-acre of waters of the US;
(2) For linear transportation projects
in tidal waters, provided the discharge
does not cause the loss of greater than
Vs-acre of waters of the US.
b. The perrnittee must notify the
District Engineer in accordance with
General Condition 13 if any of the
following criteria are met:
(1) Tile discharge causes the loss of
greater than ho-acre of waters of the US;
or
(2) There is a discharge iu a special
aquatic site, including wetlands;
c. The notification must include a
compensatory mitigation proposal to
offset permanent losses of waters of the
US to ensure that those losses result
only in minimal adverse effects to the
aquatic environment and a statement
describing how temporary losses will be
minimized to the maximum extent
practicable;
d. For discharges in special aquatic
sites, including -wetlands, and stream
riffle and pool complexes, the
notification must include a delineation
of the affected special aquatic sites;
e. The -width of the fill is limited to
the nuiuiniuun necessary for the crossing;
f. This permit does not authorize
stream channelization, and the
authorized activities must not cause
more than minimal changes to the
hydraulic flow characteristics of the
stream, increase flooding, or cause more
Federal Register / Vol. 67, No. 10 /'Tuesday, January 15, 2002/Notices 2081
than minimal degradation of water
quality of any stream (see General
Conditions 9 and 21);
g. This permit cannot be used to
authorize non-linear features commonly
associated with transportation projects,
such as vehicle maintenance or storage
buildings, parking lots, train stations, or
aircraft hangars; acid
h. The crossing is a single and
complete project for crossing waters of
the US. Where a road segment (i.e., the
shortest segment of a road with
independent utility that is part of a
larger project) has multiple crossings of
streams (several single and complete
projects) the Corps will consider
whether it should use its discretionary
authority to require an Individual
Permit. (Sections 10 and 404)
Note: Some discharges for the construction
of farm roads, forest roads, or temporary
roads for moving mining equipment may be
eligible for an exemption from the need for
a Section 404 permit (see 33 CFR 323.4).
• 15. U.S. Coast Guard Approved
Bridges. Discharges of dredged or fill
material incidental to the construction
of bridges across navigable waters of the
US, including cofferdams, abutments,
foundation seals, piers, and temporary
construction and access fills provided
such discharges have been authorized
by the USCG as part of the bridge
permit. Causeways and approach fills
are not included in this NWP and will
require an individual or regional
Section 404 permit. (Section 404)
.16. Return Water Prom Upland
Contained Disposal Areas. Return water
from upland, contained dredged
material disposal area. The dredging
itself may require a Section 404 permit
(33 CFR 323.2(d)), but will require a
Section 10 permit if located in navigable
waters of the US. The return water from
a contained disposal area is
administratively.defined as a discharge
of dredged material by 33 CFR 323.2(d),
even though the disposal itself occurs
on the upland and does not require a
Section 404 permit. This NWP satisfies
the technical requirement for a Section
404 permit for the return water where
the quality of the return water is
controlled by the state through the
Section 401 certification procedures.
(Section 404)
- 17. Flydropower Projects. Discharges
of dredged or fill material associated
with (a) small hydropower projects at
existing reservoirs where the project,
which includes the. fill, are licensed by
the Federal Energy Regulatory
Commission (Fl?RC) under the Federal
Power Act of 1920, as antencled; and has
a total generating capacity of not more
than 5000 kW; and the permittee
notifies the District Engineer in
accordance with the ''Notification"
General Condition; or (b) hydropower
projects for which the FERC has granted
an exemption from licensing pursuant
to section 408 of the Energy Security
Act of 1980 (16 U.S.C. 2705 and 2708)
and section 30 of the Federal Power Act,
as amended; provided the permittee
notifies the District Engineer in
accordance with the ''Notification''
General Condition. (Section 404)
18..MinorDischarges. Minor
discharges of dredged or fill material
into all waters of the US if the activity
meets all of the following criteria:
a. The quantity of discharged material
and the volume of area excavated do not
exceed 25 cubic yards below the plane
of the ordinary high water mark or the
high tide line;
b. The discharge, including any
excavated area, will not cause the loss
of more than 1/,o-acre of a special
aquatic site, including wetlands. For the
purposes of this NWP, the acreage
limitation includes the filled area and
excavated area plus special aquatic sites
that are adversely affected by flooding
and special aquatic sites that are
drained so that they would no longer be
a water of the US as a result of the
project;
c. If the discharge, including any
excavated area, exceeds 10 cubic yards
below the plane of the ordinary high
water mark or the high tide line or if the
discharge is in a special aquatic site,
including wetlands, the permittee
notifies the District Engineer in
accordance with the "Notification''
General Condition. For discharges in
special aquatic sites, including
wetlands, the notification must also
include a delineation of affected special
aquatic sites, including wetlands (also
see 33 CFR 330.1(e)); and
d. The discharge, including all
attendant features, both temporary and
permanent, is part of a single and
complete project and is not placed for
the purpose of a stream diversion.
(Sections 10 and 404)
19. Minor Dredging. Dredging of no
more than 25 cubic: yards below the
plane of the ordinary high water mark
or the mean high water mark from
navigable waters of the us (i.e., Section
10 waters) as part of a single and
complete project. '['his NWP does not
authorize the dredging or degradation
througlr siltation of coral reefs, sites that
support submerged aquatic vegetation
(including sites where submerged
aquatic: vegotation is documented to
exist, but may not be present in a given
year), anadrontous fish spawning areas,
or wetlands, or the connection of canals
or other artificial waterways to
navigable waters of the US (see 33 CFR
322.5(8)). (Sections 10 and 404)
20. Gil Spill Cleanup. Activities
required for the containment and
cleanup of oil and hazardous substances
which are subject to the National Oil
and Hazardous Substances Pollution
Contingency Plan (40 CF'R part 300)
provided that the work is done in
accordance with the Spill Control and
Countermeasure Plan required by 40
CFR 112.3 and any existing state
contingency plan and provided that the
Regional Response Team (if one exists
in the area) concurs with the proposed
containment and cleanup action.
(Sections 10 and 404)
21. Surface Coal Mining Activities.
Discharges of dredged or fill material
into waters of the US associated with
surface coal mining and reclamation
operations provided the coal mining
activities are authorized by the DOT,
Office of Surface Mining (OSM), or by
states with approved programs under
Title V of the Surface Mining Control
and Reclamation Act of 1977 and
provided the permittee notifies the
District Engineer in accordance with the
"Notification" General Condition. In
addition, to be authorized by this NWP,
the District Engineer must determine
that the activity complies with the terms
and conditions of the NWP and that the
adverse environmental effects are
minimal both individually and
cumulatively and must notify the
project sponsor of this determination in
writing. The Corps, at the discretion of
the District Engineer, may require a
bond to ensure success of the
mitigation, if no other Federal or state
agency has required one. For discharges
in special aquatic sites, including
wetlands, and strearn riffle and pool
complexes, the notification must also
include a delineation of affected special
aquatic sites, including wetlands. (also,
see 33 CFA 330.1(e))
Mitigation: In determining the need
for as well as the level arid type of
mitigation, the District Engineer will
ensure no more than minimal adverse
effects to the aquatic: environment
occur. As such, District Engineers will
determine oil a case-by-case basis the
requirement for adequate mitigation to
ensure the effects to aquatic systems arc
minimal. In cases where OSM or the
state has required mitigation for the loss
of aquatic habitat, the Corps may
consider this in determining appropriate
mitigation under Section 404. (Sections
10 and 404)
22. Rornovol of Vessels. Temporary
structures or minor discharges of
dredged or fill material required for the
renunval of wrecked, abandoned, or
disabled vessels, or the removal of nran-
2082 Federal Register/Vol. 67, No. 10 / Tuesday, January 15, 2002/ Notices
made obstructions to navigation. This
NWP does not authorize the remov
l
f within the form prior to the discharge of bed and/or banks to restore or create
a
o
vessels listed or determined eligible for concrete, sand, rock, etc. This NWP
does not authorize filled str
t
l stream meanders; the backfilling of

listing on the National Register of
Historic Places unless the Di
t
i uc
ura
members that would support buildings, artificial channels and drainage ditches;
the removal of existing drainage
s
r
ct
Engineer is notified and indicates that building pads, homes, house pads,
parking areas
storage areas and
th structures; the construction of small

there is compliance with the "Historic ,
o
er
such structures, The structure itself m nesting islands; the construction of open

Properties" General Condition. This
NWP does not authorize maint ay
require a Section 10 permit if located in water areas; the construction of oyster
habitat over unvegetated bottom in tidal
enance
dredging, shoal removal, or riverbank navigable waters of the US. (Section
404) waters; activities needed to reestablish

snagging. Vessel disposal in waters of
the US may need a
ermit fr
EPA
26. [Reserved]
27
St vegetation, including plowing or discing
for seed bed preparation and the
p
om
(see 40 CFR 229.3). (Sections 10 and .
ream and Wetland Restoration
Activities. Activities in waters of the US planting of appropriate wetland species;

404)
23. Approved Categorical Exclusions.
associated with the restoration of former
waters, the enhancement of de
raded mechanized land clearing to remove
non-native invasive, exotic: or nusiance

Activities undertaken, assisted,
authorized
regulated
funded
or g
tidal and non-tidal wetlands and
i
i vegetation; and other related activities.
This NWP does not authorize the
,
,
,
r
par
an areas, the creation of tidal and
financed, in whole or in part, by another non-tidal wetlands and ri
arian a conversion of a stream to another

Federal agency or department where
that agency or department has p
reas,
and the restoration and enhancement of aquatic use, such as the creation of an
impoundment for waterfowl habitat,

determined, pursuant to the Council on non-tidal streams and non-tidal open
water areas as follows: This NWP does not authorize strearn
channeliz
ti
Thi
N

Environmental Quality Regulation for
Implementing the Procedural Provisions
(a) The activity is conducted on:
(1) Non-Federal public: lands arid- a
on.
s
WP does not
authorize the conversion Of natural

of the National Environmental Policy
Act (NEPA) (40 CFR part 1500 et se
) ,
private lands, in accordance with the
term
d
di wetlands to another aquatic use, such as
creation of waterfowl impoundments
q.
,
that the activity, work, or discharge is s an
con
tions of a binding
wetland enhancement
restoration where a forested wetland previously

categorically excluded from ,
, or
creation agreement between the existed. However, this NWI' authorizes
the relocation of non-tidal wat

environmental documentation, because
it is included within a category of
landowner and the U.S. Fish and
Wildlife Service (FWS) or the Natural ers,
including non-tidal wetlands, on the

actions which neither individually nor
cumulatively have a significant effect on
Resources Conservation Service (NRCS),
the National Marine Fisherie
S
i project site provided there are net gains
in aquatic resource functions and

the human environment, and the Office s
erv
ce,
the National Ocean Service, or values. For example, this NWP may
authorize the creation of

of the Chief of Engineers (ATTN: CECW-
OR) has been furnished notice of the
voluntary wetland restoration,
enhancement
and creati
ti an open water
impoundment in a non-tidal emergent

agency's or department's application for
th ,
on ac
ons
documented by the NRCS pursuant to wetland, provided the non-tidal
emergent wetland is replaced b

e categorical exclusion and concurs
with that determination. Before
NRCS regulations; or
(2) Reclaimed surface coal mi y
creating that wetland type on the project

approval for purposes of this NWP of
' ne
lands, in accordance with a Surface site. This NWP does not authorize the
relocation of tidal waters or the
any agency
s categorical exclusions, the
Chief of Engineers will solicit public Mining Control and Reclamation Act
permit issued by the OSM or the conversion of tidal waters, including
id

comment. In addressing these
comments, the Chief of En
ineers ma
applicable state agency (the future
i
d t
al wetlands, to other aquatic uses,
such as the conversion of tidal wetlands
g
y
require certain conditions for revers
on
oes not apply to streams or
wetlands created, restored, or enhanced into open water impoundments.
Reversion
For enhancement

authorization of an agency's categorical
exclusions under this NWP. (Sections
as mitigation for the raining impacts,
nor naturall
clue to h
clr
l
i .
,
restoration, and creation projects
d
d

10 and 404)
24. State Administered Section 404 y
y
o
og
c or
topographic features, nor for a con
ucte
under paragraphs (a)(3), this
NWP does not authorize any future

Program. Any activity permitted by a
state administerin
its own S
ti
40 mitigation bank); or
(3YAny other public, private or tribal discharge of dredged or fill material
associated with the reversion of the area
g
ec
on
4
permit program pursuant to 33 U.S.C.
1344(-)-(1) is permitted
ursuant to lands;
(b) Notification: For activities on any
bli to its prior condition. In such cases a
separate permit would be required for
p
section 10 of the Rivers and Harbors Act
f pu
c or private land that are not
described by paragraphs (a)(1) or (a)(2) guy reversion. For restoration,
enhancement
and creation
rojects
o
1899. Those activities that do not
involve a Section 404
t
t
i ahove, the permittee must notify the ,
p
conducted under para-raphs (a)(1) and
s
a
e perm
t are
not included in this NWP, but certain District En-ineer in accordance with
General Condition 13; and (a)(2), this NWP also authorizes any
future discharge of dredged or fill
structures will be exempted by section
154 of Pub. L. 94-587, 90 Stat. 2917 (33 (c) Planting of only native species
should occur on tin
it material associated with the reversion of

U.S.C. 591) (see 33 CFR 322.3(a)(2)).
(Section 10) e s
e.
Activities authorized by this NWP the area to its documented prior
condition and use (i.e., prior to the

25. Structural Discharges. Discharges include, to the extent that a Corps
permit is required, but are not limito(t restoration, enhancement, or creation
activities)
The reversio
t

of material such as concrete, sand, rock,
etc., into ti-litly sealed forms or cells
to: the removal of accumulated
sedinients; the installation
r
l .
n mus
occur
within five years after expiration of a

where the material will be used as a
structural member for standard
ile ,
emova
,
aril maintenance of small water control
t
t
d
k limited terns wetland restoration or
creation agreement or permit, even if the
p
supported structures, such as bridges, s
ruc
ures,
i
es, and berms; the
installation of current deflectors; the discharge occurs after this NWI' expires.
This NWP also authorizes the reve
i

transmission line footings, and
walkways or for general navigation,
enhancement, restoration, or creation of
riffle and pool stream structure
th rs
on
of wetlands that were restored,
h

such as mooring cells, including the ;
e
placement of in-stream habitat en
anced, or created oil prior-converted
cropland that has not been abandoned

excavation of bottom material from
structures; modifications of the stream ,
in accordance with a bincling a-reement
Federal Register/ Vol. 67, No. 10/`I'uesclay, January 15, 2002 /Notices 2083
between the landowner and NRCS or
FWS (even though the restoration,
enhancement, or creation activity did
not require a Section 40,1 permit). The
five-year reversion limit does not apply
to agreements without time limits
reached under paragraph (a)(1). The
prior condition will be documented in
the original agreement or permit, and
the determination of return to prior
conditions will he made by the Federal
agency or appropriate state agency
executing the agreement or permit.
Before any reversion activity the
permittee or the appropriate Federal or
state agency must notify the District
Engineer and include the
documentation of the prior condition.
Once an area has reverted to its prior
physical condition, it will be subject to
whatever the Corps Regulatory
requirements will be at that future date.
(Sections 10 and 404)
Note: Compensatory mitigation is not
required for activities authorized by this
NWP, provided the Authorized work results
in a net increase in aquatic resource
functions aril values in the project area. This
MVP can be used to authorize compensatory
mitigation projects, including mitigation
banks, provided the permittee notifies the
District Engineer in accordance with General
Condition 13, and the project includes
compensatory mitigation for impacts to
waters of the US caused by the authorized
work. However, this NWP does not authorize
the reversion of an area used for a
compensatory mitigation project to its prior
condition. NWP 27 can be used to authorize
impacts at a mitigation bank, but only in
circumstances where it has been approved
under the Interagency Federal Mitigation
Bank Guidelines.
28. Modifications of Existing Marinas.
Reconfiguration of existing docking
facilities within an authorized marina
area. No dredging, additional slips, clock
spaces, or expansion of any kind within
waters of the US. is authorized by this
NWP, (Section 10)
29. Single-farnilvllousing. Discharges
of dredged or fill material into non-tidal
waters of the US, including non-tidal
wetlands for the construction or
expansion of a single-family home and
attendant features (such as a garage,
driveway, storage sited, and/or septic
field) for an Individual Permittee
provided that the activity meets all of
the following criteria:
a. The discharge does not cause the
loss of more than '/,-acre of non-ticlal
waters of the US, including lion-tidal
wetlands;
b. The permittee notifies the District
Frigineer in accordance with the
"Notification" General Condition;
c. The permittee has taken all
practicable actions to minimize the on-
site and off-site impacts of the
discharge. For example, the location of
the home may need to be adjusted on-
site to avoid flooding of adjacent
property owners;
cl. 'rho discharge is part of a single
and complete project; furthermore, that
for any subdivision created on or after
November 22, 1991, the discharges,
authorized under this NNVP may not
exceed an aggregate total loss of waters
of the US of '/,-acre for the entire
subdivision;
e. Xn individual may use this NWP
only for a single-family home for a
personal residence;
f. This NWP may be used only once
per parcel;
g. This MVP may not he used in
conjunction with NWP 14 or NNVP 18,
for any parcel; and,
h. Sufficient vegetated buffers must be
maintained adjacent to all open water
bodies, streams, etc., to preclude water
quality degradation clue to erosion anti
sedimentation.
For the purposes of this NWP, the
acreage of loss of waters of the US
includes the filled area previously
permitted, the proposed filled area, and
any other waters of the US that are
adversely affected by flooding,
excavation, or drainage as a result of the
project. This NWP authorizes activities
only by individuals; for this purpose,
the term "individual" refers to a natural
person and/or a married couple, but
does not include a corporation,
partnership, or similar entity. For the
purposes of this NW-P, a parcel of land
is defined as "the entire contiguous
quantity of land in possession of,
recorded as property of, or owned (in
any form of ownership, including land
owned as a partner, corporation, joint
tenant, etc.) by the same individual
(and/or that individual's spouse), and
comprises not only the area of wetlands
sought to be filled, but also all land
contiguous to those wetlands, owned by
the individual (and/or that individual's
spouse) in any form of ownership."
(Sections 10 and 404)
30. Moist Soil Management for
Wilcllife. Discharges of dredged or fill
material and maintenance activities that
are associated with moist soil
nianagenient for wildlife performed on
non-tidal Federally-owned or managed,
state-owned or managed property, and
local government agency-owned or
managed property, for the purpose of
continuing Ongoing, site-specific,
wildlife management activities where
soil manipulation is used to manage
habitat and feeding areas for wildlife.
Such activities include, but are not
limited to: The repair, maintenance or
replacement of existing water control
structures; the repair or maintenance of
dikes; and plowing or distill- to impecle
successioi,, prepare seed beds, or
establish fire breaks. Sufficient
vegetated buffers must be maintained
adjacent to all open water bodies,
streams, etc., to preclude water quality
degradation clue to erosion and
sedimentation. This NWP does not
authorize the construction of new dikes,
roads, water control structures, etc.
associated with the management areas.
This NWP does not authorize converting
wetlands to uplands, impoundments or
other open water bodies. (Section 404)
31. Mointenarice of Existing Flood
Control Facilities. Discharge of dredge
or fill material resulting from activities
associated with the maintenance of
existing flood control facilities,
including debris basins, retention/
detention basins, and channels that
(i) were previously authorized by the
Corps by Individual Permit, General
Permit, by 33 CFR 330.3, or did not
require a permit at the time it was
constructed, or
(ii) were constructed by the Corps and
transferred to a non-Federal sponsor for
operation and maintenance. Activities
authorized by this MVP are limited to
those resulting from maintenance
activities that are conducted within the
"maintenance baseline," as described in
the definition below. Activities
including the discharges of dredged or
fill materials, associated with
maintenance activities in flood control
facilities in any watercourse that has
previously been determined to be
within the maintenance baseline, are
authorized under this MVP, The MVP
does not authorize the removal of
sediment and associated vegetation from
the natural water courses except to the
extent that these have been included in
the maintenance baseline. All dredged
material must be placed in an upland
site or an authorized disposal site in
waters of the US, and proper siltation
controls most be used. (Activities of any
kind that result in only incidental
fallback, or only the cutting and
removing of vegetation above the
ground, e.g., triowing, rotary cutting,
and chainsawing, where the activity
neither substantially disturbs the root
system nor involves mechanized
pushing, dragging, or other similar
activities that redeposit excavated soil
material, do not require a Section 40-1
permit in accordance with 33 CFR
323.2(d)(2)),
Notification: After the maintenance
baseline is established, and before any
maintenance work iS Conducted, the:
permittee must notify the District
Engineer in accordance with the
''Notification" General Condition. The
notification may be for activity-specific

2084 Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002/Notices
maintenance or for maintenance of the
entire flood control facility by However, if one-time mitigation is
required for impacts associated with activity subject to the terms and
conditions of this NWP and the
submitting a five year (or less)
maintenance plan. maintenance activities, the District
Engineer will not delay needed settlement agreement, including a
specified completion date; or
Maintenance Baseline: The
maintenance baseline is a description of maintenance, provided the District
Engineer and the permittee establish a (ii) The terms of a final Federal court
decision
consent decree
or settlement
the physical characteristics (e.g., depth,
width, length, location, configuration, or schedule for identification, approval,
development, construction and ,
,
agreement resulting from an
enforcement action brought by the U
S

design flood capacity, etc.) of a flood
control project within which
completion of any such required
i
i .
.
under section 404 of the CWA and/or

maintenance activities are normally m
t
gation. Once the one-time
mitigation described above has been section 10 of the Rivers and Harbors Act
of 1899; or
authorized by NWP 31, subject to any
case-specific conditions required by the completed, or a determination made
that mltigation is not required, no (iii) The terms of a final court
decision, consent decree
settlement
District Engineer. The District Engineer
will approve the maintenance baseline further mitigation will be required for
i ,
agreement, or non-judicial settlement

based on the approved or constructed ma
ntenance activities within the
maintenance baseline. In determining agreement resulting from a natural
resource damage claim brought by a
capacity of the flood control facility,
whichever is smaller, including any appropriate mitigation, the District
Engineer will give special consideration trustee or trustees for natural resources
(as defined by the National Contingency
areas where there are no constructed
channels
but which are
art of the to natural water courses that have been
i
l
d
d Plan at 40 CFR subpart G) under section
,
p
facility. If no evidence of the nc
u
e
in the maintenance baseline
and require compensatory mitigation 311 of the Clean Water Act (CWA),
section 107 of the Comprehensive
constructed capacity exist, the approved
constructed capacity will be used. The and/or BMPs as appropriate.
Emergency Situations: In emergency Environmental Response, Compensation
and Liability Act (CERCLA or
prospective permittee will provide
documentation of the physical situations, this NWP may be used to
authorize maintenance activities in Superfund), section 312 of the National
Marine Sanctuaries Act (NMSA)
section
characteristics of the flood control flood control facilities for which no ,
1002 of the Oil Pollution Act of 1990
facility (which will normally consist of
as-built or approved drawings) and maintenance baseline has been
approved. Emergency situations are (OPA), or the Park System Resource
Protection Act at 16 U.S.C. '19jj, to the
documentation of the design capacities
of the flood control facility. The those which would result in an
unacceptable hazard to life, a significant extent that a Corps permit is required.
For either (i), Cii) or (iii) above

documentation will also include BMPs
loss of property, or an immediate, ,
compliance is a condition of the NWP
to ensure that the impacts to the aquatic unforeseen, and significant economic itself. Any authorization under this
environment are minimal, especially in hardship if action is not taken before a NWP is automatically revoked if the
maintenance areas where there are no maintenance baseline can be approved. permittee does not comply with the
constructed channels. (The Corps may Ili such situations, the determination of terms of this NWP or the terms of the
request maintenance records in areas
where there has not been recent mitigation requirements, if any, may be
deferred until the emergency has been court decision, consent decree, or
judicial/non-judicial settlement
maintenance.) Revocation or resolved. Once the emergency has agreement or fails to complete the work
modification of the final determination ended, a maintenance baseline must be by the specified completion date. This
of the maintenance baseline can only be established expeditiously, and NWP does not apply to any activities
done in accordance with 33 CFR 330.5. mitigation, including mitigation for occurring after the date of the decision,
Except in emergencies as described
below
this NWP can not be us
d
til maintenance conducted during the decree, or agreement that are not for the
,
e
un
the District Engineer approves the emergency, must be required as
appropriate. (Sections 10 and 404) purpose of mitigation, restoration, or
environmental benefit. Before reaching
maintenance baseline and determines 32. Completed Enforcement Actions, any settlement agreement, the Corps
the need for mitigation and any regional Any structure, work or discharge of will ensure compliance with the
or activity-specific conditions. Once
determined, the maintenance baseline dredged or fill material, remaining in
place, or undertaken for mitigation provisions of 33 CFR part 326 and 33
GFR 330.6 (d)(2) and (e). (Sections 10
will remain valid for any subsequent ,
restoration, or environmental benefit in and 404)
reissuance of this NWP. This permit compliance with either: 33. Temporary Construction, Access
does not authorize maintenance of a (i) The terms of a final written Corps and Deivatering. Temporary structures,
flood control facility that has been non-judicial settlement agreement work and discharges, including
abandoned. A flood control facility will resolving a violation of section 404 of cofferdams, necessary for construction
be considered abandoned if it has the CWA and/or section 10 of the Rivers activities or access fills or dewatering of
operated at a significantly reduced and FIarbors Act of 1899; or the terms construction sites; provided that the
capacity without needed maintenance of an EPA 309(a) order on consent associated primary activity is authorized
tieing accomplished in a timely manner, resolving a violation of section 404 of by the Corps of Engineers or the USCG,
Mitigation: The District Engineer will
determine any required mitigation one- the CWr1, provided that:
a. The unauthorized activity affected or for other construction activities not
subject to the Corps or USCG
time only for impacts associated with
maintenance work at the same time that no more than 5 acres of non-tidal
wetlands or I acre of tidal wetlands; regulations. Appropriate measures must
be taken to maintain near normal
the maintenance baseline is approved. b, The settlement agreement provides downstream flows and to minimize
Such one-time mitigation will be for environmental benefits, to an equal flooding. Fill must be of materials, and
required when necessary to ensure that
adverse environment
l i
t or greater degree, than the placed in a manner, that will not be
a
mpac
s are no
more than minimal, both individually environmental detriments caused by the
unauthorized activity that is authorized eroded by expected high flows. The use
of dredged material may be allowed if
and cumulatively. Such mitigation will
only be required once for any specific by this NWP; and
c. The District Engineer issues a it is determined by the District Engineer
that it will not cause more than minimal
reach of a flood control project. verification letter authorizing the adverse effects on aquatic resources.
Federal Register / Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 20£35
"Temporary fill must be entirely removed
to upland areas, or dredged material
returned to its original location,
following completion of the
construction activity, and the affected
areas must be restored to the pre-project
conditions. Cofferdams cannot be used
to dewater wetlands or other aquatic
areas to change their use. Structures left
in place after cofferdams are removed
require a Section 10 permit if located in
navigable waters of the U.S. (See 33 CFR
part 322). The permittee must notify the
District Engineer in accordance with the
''Notification" General Condition. The
notification must also include a
restoration plan of reasonable measures
to avoid and minimize adverse effects to
aquatic resources. The District Engineer
will add Special Conditions, where
necessary, to ensure environmental
adverse effects is minimal. Such
conditions may include: limiting the
temporary work to the minimum
necessary; requiring seasonal
restrictions; modifying the restoration
plan; and requiring alternative
construction methods (e.g. construction
mats in wetlands where practicable.).
(Sections 10 and 404)
34. Cranberry Production Activities.
Discharges of dredged or fill material for
dikes, berms, pumps, water control
structures or leveling of cranberry beds
associated with expansion,
enhancement, or modification activities
at existing cranberry production
operations provided that the activity
meets all of the following criteria:
a. The cumulative total acreage of
disturbance per cranberry production
operation, including but not limited to,
filling, flooding, ditching, or clearing,
does not exceed 10 acres of waters of the
U.S., including wetlands;
b. The permittee notifies the District
Engineer in accordance with the
''Notification" General Condition. The
notification must include a delineation
of affected special aquatic sites,
including wetlands; and,
c. The activity does not result in a net
loss of wetland acreage. This NWP does
not authorize any discharge of dredged
or fill material related to other cranberry
production activities such as
warehouses, processing facilities, or
parking areas. For the purposes of this
NWP, the cumulative total of 10 acres
will be measured over the period that
this NWl' is valid. (Section 404)
35. Maintenance Dredging of Existing
Basins. Excavation and removal of
accumulated sediment for maintenance
of existing marina basins, access
channels to marinas or boat slips, and
boat slips to previously authorized
depths or controlling depths for ingress/
egress, whichever is less, provided the
dredged material is disposed of at an
upland site and proper siltation controls
are used. (Section 10)
36. Boat Romps. Activities required
for the construction of boat ramps
provided:
a. The discharge into waters of the
U.S. does not exceed 50 cubic yards of
concrete, rock, crushed stone or gravel
into forms, or placement of pre-cast
concrete planks or slabs. (Unsuitable
material that causes unacceptable
chenii,cal pollution or is structurally
unstable is not authorized);
b. The boat ramp does not exceed 20
feet in width;
c. The base material is crushed stone,
gravel or other suitable material;
d. The excavation is limited to the
area necessary for site preparation and
all excavated material is removed to the
upland; and,
e. No material is placed in special
aquatic sites, including wetlands.
Another NWP, Regional General
Permit, or Individual Permit may
authorize dredging to provide access to
the boat ramp after obtaining a Section
10 if located in navigable waters of the
U.S. (Sections 10 and 404)
37. Emergency Watershed Protection
and Rehabilitation. Work done by or
funded by:
a. The NRCS which is a situation
requiring immediate action under its
emergency Watershed Protection
Program (7 CFR part 624); or
b. The USFS under its Burned-Area
Emergency Rehabilitation Handbook
(FSH 509.13); or
c. The DO[ for wildland fire
management burned area emergency
stabilization and rehabilitation (DO[
Manual art 620, Ch. 3).
For all of the above provisions, the
District Engineer must be notified in
accordance with the General Condition
13. (Also, see 33 CFR 330.1(e)).
(Sections 10 and 404)
38. Cleanup of Hazardous and Toxic
Waste. Specific activities required to
effect the containment, stabilization, or
removal of hazardous or toxic waste
materials that are performed, ordered, or
sponsored by a government agency with
established legal or regulatory authority
provided the permittee notifies the
District Engineer in accordance with the
"Notification" General Condition. For
discharges in special aquatic sites,
including wetlands, the notification
must also include a delineation of
affected special aquatic sites, including
wetlands. Court ordered remedial action
plans or related settlements are also
authorized by this NWP. This NWl' does
not authorize the establishment of new
disposal sites or the expansion of
existing sites used for the disposal of
hazardous or toxic waste. Activities
undertaken entirely on a
Comprehensive Environmental
Response, Compensation, and Liability
Act (CERCLA) site by authority of
CERCLA as approved or required by
EPA, are not required to obtain permits
under section 404 of the CWA or section
10 of the Rivers and Harbors Act.
(Sections 10 and 404)
39. Residential, Commercial, and
Institutional Developments. Discharges
of dredged or fill material into non-tidal
waters of the U.S., excluding non-tidal
wetlands adjacent to tidal waters, for the
construction or expansion of residential,
commercial, and institutional building
foundations and building pads and
attendant features that are necessary for
the use and maintenance of the
structure's. Attendant features may
include, but are not limited to, roads,
parking lots, garages, yards, utility lines,
stormwater management facilities, and
recreation facilities such as
playgrounds, playing fields, and golf
courses (provided the golf course is an
integral part of the residential
development). The construction of new
ski areas or oil and gas wells is not
authorized by this NWP.
Residential developments include
multiple and single unit developments.
Examples of commercial developments
include retail stores, industrial facilities,
restaurants, business parks, and
shopping centers. Examples of
institutional developments include
schools, fire stations, government office
buildings, judicial buildings, public
works buildings, libraries, hospitals,
and places of worship. The activities
listed above are authorized, provided
the activities meet all of the following
criteria:
a. The discharge does not cause the
loss of greater than 1/2-acre of non-tidal
waters of the U.S., excluding non-tidal
wetlands adjacent to tidal waters;
b. The discharge does not cause the
loss of greater than 300 linear-feet of a
stream bed, unless for intermittent
stream beds this criterion is waived in
writing pursuant to a determination by
the District Engineer, as specified
below, that the project complies with all
terms and conditions of this MVP and
that any adverse impacts of the project
on the aquatic environment are
minimal, both individually and
cumulatively;
c. The permittee must notify the
District Engineer in accordance with
General Condition 13, if any of the
following criteria are met:
(1) The discharge causes the loss of
greater than Vio-acre of non-tidal waters
of the US, excluding non-tidal wetlands
adjacent to tidal waters; or

2086 Federal Register/Vol. 67, No. 10 / Tuesday, January 15, 2002/Notices
(2) The discharge causes the loss of
any open waters, including perennial or
intermittent streams, below the ordinary
hi-li water mark (see Note, below); or
N The discharge causes the loss of
greater than 300 linear feet of
intermittent stream bed. In such case, to
be authorized the District Engineer must
determine that the activity complies
with the other terms and conditions of
the NWP, determine adverse
environmental effects are minimal both
individually and cumulatively, and
waive the limitation on stream impacts
in writing before the permittee may
proceed;
d. For discharges in special aquatic
sites, including wetlands, the
notification must include a delineation
of affected special aquatic sites;
e. The discharge is part of a single and
complete project;
f. The permittee must avoid and
minimize discharges into waters of the
US at the project site to the maximum
extent practicable: The notification,
when required, must include a written
statement explaining how avoidance
and minimization of losses of waters of
the US were achieved on the project
site. Compensatory mitigation will
normally be required to offset the losses
of waters of the US. (See General
Condition 19.) The notification must
also include a compensatory mitigation
proposal for offsetting unavoidable
losses of waters of the US. If an
applicant asserts that the adverse effects
of the project are minimal without
mitigation, then the applicant may
submit justification explaining why
compensatory mitigation should not be
required for the District Engineer's
consideration;
g. When this NWP is used in
conjunction with any other NWP, any
combined total permanent loss of waters
of the US exceeding 1Ao-acre requires
that the permittee notify the District
Engineer in accordance with General
Condition 13;
h. Any work authorized by this MVP
must not cause more than minimal
degradation of water quality or more
than minimal changes to the flow
characteristics of any stream (see
General Conditions 9 and 21);
i. For discharges causing the loss of
1/ro-acre or less of waters of the US, the
permittee must submit a report, within i
30 days of completion of the work, to
the District Engineer that contains the r
following information: (1) The name,
address, and telephone number of the
perrnittee; (2) The location of the work; ti
(3) A description of the work; (4) The v
type and acreage of the loss of waters of i
the LIS (e.g., 1A,-acre of emergent t
wetlands); and (5) The type and acreage f
of any compensatory mitigation used to
offset the loss of waters of the US (e.g.,
Vi 2-acre of emergent wetlands created
on-site);
j. If there are any open waters or
streams within the project area, the
permittee will establish and maintain, to
the maximum extent practicable,
wetland or upland vegetated buffers
next to those open waters or streams
consistent with General Condition 19.
Deed restrictions, conservation
easements, protective covenants, or
other means of land conservation and
preservation are required to protect and
maintain the vegetated buffers
established on the project site.
Only residential, commercial, and
institutional activities with structures
on the foundation(s) or building pad(s),
as well as the attendant features, are
authorized by this NWP. The
compensatory mitigation proposal tliat
is required in paragraph (e) of this NWP
may be either conceptual or detailed.
The wetland or upland vegetated buffer
required in paragraph W of this NWP
will be determined on a case-by-case
basis by the District Engineer for
addressing water quality concerns. The
required wetland or upland vegetated
buffer is part of the overall
compensatory mitigation requirement
for this NWP. If the project site was
previously used for agricultural
purposes and the farm owner/operator
used MVP 40 to authorize activities in
waters of the US to increase production
or construct farm buildings, NWP 39
cannot be used by the developer to
authorize additional activities. This is
more than the acreage limit for NWP 39
impacts to waters of the US (i.e., the
combined acreage loss authorized under
NWPs 39 and 40 cannot exceed 1/2-acre,
see General Condition 15).
Subdivisions: For residential
subdivisions, the aggregate total loss of
waters of US authorized by NWP 39 can
not exceed 1/2-acre. This includes any
loss of waters associated with
development of individual subdivision
lots. (Sections 10 and 404)
Note: Areas where wetland vegetation is
not present should be determined by the
presence or absence of an ordinary high
water mark or bed and bank. Areas that are
waters of the US based on this criterion
would require a PCN although water is
nfrequently present in the stream channel
except for ephemeral waters, which do not
equire PCNs).
40. Agricultural Activities. Discharges
of dredged or fill material into non-tidal
vaters of the US, excluding non-tidal
vetlands adjacent to tidal waters, for r
mproving agricultural production and
he construction of building pads for
arm buildings. Authorized activities c
include the installation, placement, or
construction of drainage tiles, ditches,
or levees; mechanized land clearing;
land leveling; the relocation of existing
serviceable drainage ditches constructed
in waters of the US; and similar
activities, provided the permittee
complies with the following terms and
conditions:
a. For discharges into non-ticial
wetlands to improve agricultural
production, the following criteria must
be met if the permittee is an United
States Department of Agriculture
(USDA) Program participant:
(1) The perrnittee must obtain a
categorical minimal effects exemption,
minimal effect exemption, or mitigation
exemption from NRCS in accordance
with the provisions of the Food Security
Act of 1985, as amended (16 U.S.C. 3801
et seq.);
(2) The discharge into non-tidal
wetlands does not result in the loss of
greater than 1/2-acre of non-tidal
wetlands on a farm tract;
(3) The permittee must have NRCS-
certified wetland delineation;
(4) The permittee must implement an
NRCS-approved compensatory
mitigation plan that fully offsets
wetland losses, if required; and
(5) The permittee must submit a
report, within 30 days of completion of
the authorized work, to the District
Engineer that contains the following
information: (a) The name, address, and
telephone number of the permittee; (b)
The location of the work; (c) A
description of the work; (d) The type
and acreage (or square feet) of the loss
of wetlands (e.g., 1/3-acre of emergent
wetlands); and (e) The type, acreage (or
square feet), and location of
compensatory mitigation (e.g. 1/3-acre of
emergent wetland on a farm tract;
credits purchased from a mitigation
bank); or
b. For discharges into non-tidal
wetlands to improve agricultural
production, the following criteria most
be met if the permittee is not a USDA
Program participant (or a USDA
Program participant for which the
proposed work does not qualify for
authorization under paragraph (a) of this
MVP):
(1) The discharge into non-tidal
wetlands does not result in the loss of
greater than 1/z-acre of non-tidal
wetlands on a farm tract;
(2) The permittee must notify tine
District Engineer in accordance with
General Condition 13, if the discharge
esttlts in the loss of greater than 1/10-
rcre of non-ticial wetlands;
(3) The notification must include a
lelineation of affected wetlands; and
Federal Register / Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 2087
(4) The notification must include a
compensatory mitigation proposal to
offset losses of waters of the US; or
c. For the construction of building
pads for farm buildings, the discharge
does not cause the loss of greater than
a/z-acre of non-tidal wetlands that were
in agricultural production prior to
December 23, 1985, (i.e., farmed
wetlands) and the permittee must notify
the District Engineer in accordance with
General Condition 13; and
d. Any activity in other waters of the
US is limited to the relocation of
existing serviceable drainage ditches
constructed in non-tidal streams. This
NWP does not authorize the relocation
of greater than 300 linear-feet of existing
serviceable drainage ditches constructed
in non-tidal streams unless, for drainage
ditches constructed in intermittent non-
tidal streams, the District Engineer
waives this criterion in writing, and the
District Engineer has determined that
the project complies with all terms and
conditions of this NWP, and that any
adverse impacts of the project on the
aquatic environment are minimal, both
individually and cumulatively. For
impacts exceeding 300-linear feet of
impacts to existing serviceable ditches
constructed in intermittent non-tidal
streams, the permittee must notify the
District Engineer in accordance with the
"Notification" General Condition 13;
and
e. The term "farm tract" refers to a
parcel of land identified by the Farm
Service Agency. The Corps will identify
other waters of the US on the farm tract.
NRCS will determine if a proposed
agricultural activity meets the terms and
conditions of paragraph a. of this NWP,
except as provided below. For those
activities that require notification, the
District Engineer will determine if a
proposed agricultural activity is
authorized by paragraphs b., c., and/or
d. of this NWP. USDA Program
participants, requesting authorization for
discharges of dredged or fill material
into waters of the US authorized by
paragraphs (c) or (d) of this NWP, in
addition to paragraph (a), must notify
the District Engineer in accordance with
General Condition 13 and the District
Engineer will determine if the entire
single and complete project is
authorized by this NWP. Discharges of
dredged or fill material into waters of
the US associated with completing
required compensatory mitigation are
authorized by this NWP. However, total
impacts, including other authorized
impacts under this NMI, may not
exceed the'/-acre limit of this NWP.
This NWP does not affect, or otherwise
regulate, discharges associated with
agricultural activities when the
discharge qualifies for an exemption
under section 404(f) of the MA, even
though a categorical minimal effects
exemption, minimal effect exemption,
or mitigation exemption from NRCS
pursuant to the Food Security Act of
1985, as amended, may be required.
Activities authorized by paragraphs a.
through d. may not exceed a total of 112-
acre on a single farm tract. If the site was
used for agricultural purposes and the
farm owner/operator used either
paragraphs a., b., or c. of this NWP to
authorize activities in waters of the US
to increase agricultural production or
construct farm buildings, and the
current landowner wants to use NVVP 39
to authorize residential, commercial, or
industrial development activities in
waters of the US on the site, the
combined acreage loss authorized by
NWPs 39 and 40 cannot exceed 1/2-acre
(see General Condition 15). (Section
404)
41. Reshaping Fxisting Drainage
Ditches. Discharges of dredged or fill
material into non-tidal waters of the US,
excluding non-tidal wetlands adjacent
to tidal waters, to modify the cross-
sectional configuration of currently
serviceable drainage ditches constructed
in waters of the US. The reshaping of
the ditch cannot increase drainage
capacity beyond the original design
capacity. Nor can it expand the area
drained by the ditch as originally
designed (i.e., the capacity of the ditch
must be the same as originally designed
and it cannot drain additional wetlands
or other waters of the US).
Compensatory mitigation is not required
because the work is designed to improve
water quality (e.g., by regrading the
drainage ditch with gentler slopes,
which can reduce erosion, increase
growth of vegetation, increase uptake of
nutrients and other substances by
vegetation, etc.).
Notification: The permittee must
notify the District Engineer in
accordance with General Condition 13 if
greater than 500 linear feet of drainage
ditch will be reshaped. Material
resulting from excavation may not be
permanently sidecast into waters but
may be temporarily sidecast (up to three
months) into waters of the US, provided
the material is not placed in such a
manner that it is dispersed by currents
or other forces. The District Engineer
may extend the period of temporary
sidecastin" not to exceed a total of 180
days, where appropriate. In general, this
NWP does not apply to reshaping
drainage ditches constructed in
uplands, since these areas are generally
not waters of the US, and thus no permit
from the Corps is required, or to the
maintenance of existing drainage
ditches to their original dimensions and
configuration, which does not require a
section 404 permit (see 33 CFR
323.4(a)(3)). This MVP does not
authorize the relocation of drainage
ditches constructed in waters of the US;
the location of the centerline of the
reshaped drainage ditch must be
approximately the same as the location
of the centerline of the original drainage
ditch. This MVP does not authorize
stream channelization or stream
relocation projects. (Section 404)
42. Recreational Facilities. Discharges
of dredged or fill material into non-tidal
waters of the US, excluding non-tidal
wetlands adjacent to tidal waters, for the
construction or expansion of
recreational facilities, provided the
activity meets all of the following
criteria:
a, The discharge does not cause the
loss of greater than 1/z-acre of non-tidal
waters of the US, excluding non-tidal
wetlands adjacent to tidal waters;
b. The discharge does not cause the
loss of greater than 300 linear-feet of a
stream bed, unless for intermittent
stream beds this criterion is waived in
writing pursuant to a determination by
the District Engineer, as specified
below, that the project complies with all
terms and conditions of this NWP and
that any adverse impacts of the project
on the aquatic environment are
minimal, both individually and
cumulatively;
c. The permittee notifies the District
Engineer in accordance with the
"Notification" General Condition 13 for
discharges exceeding 300 linear feet of
impact of intermittent stream beds. In
such cases, to be authorized the District
Engineer must determine that the
activity complies with the other terms
and conditions of the NWP, determine
the adverse environmental effects are
minimal both individually and
cumulatively, and waive this limitation
in writing before the permittee may
proceed;
d. For discharges causing the loss of
greater than 1/1o-acre of non-tidal waters
of the US, the permittee notifies the
District Engineer in accordance with
General Condition 13;
a. Fbr dischar;es in special aquatic:
sites, including wetlands, the
notification must include a delineation
of affected special aquatic sites;
f. The discharge is part of a single and
complete project; and
g. Compensatory mitigation will
normally be required to offset the losses
of waters of the US. The notification
must also include a compensatory
mitigation proposal to offset authorized
losses of waters of the US.
2088 Federal Register/Vol. 67, No. 10 /'I'uesday, January 15, 2002/Notices
For the purposes of this NWP, the
terra "recreational facility" is defined as
a recreational activity that is integrated
into the natural landscape and does not
substantially change preconstruction
grades or deviate from natural landscap
contours. For the purpose of this permit
the primary function of recreational
facilities does not include the use of
motor vehicles, buildings, or impervious
surfaces, Examples of recreational
facilities that may be authorized by this
NWP include hiking trails, bike paths,
horse paths, nature centers, and
campgrounds (excluding trailer parks).
This NWP may authorize the
construction or expansion of golf
courses and the expansion of ski areas,
provided the golf course or ski area does
not substantially deviate from natural
landscape contours. Additionally, these
activities are designed to minimize
adverse effects to waters of the US and
riparian areas through the use of such
practices as integrated pest
management, adequate stormwater
management facilities, vegetated buffers,
reduced fertilizer use, etc. The facility
must have an adequate water quality
management plan in accordance with
General Condition 9, such as a
stormwater management facility, to
ensure that the recreational facility
results in no substantial adverse effects
to water quality. This NWP also
authorizes the construction or
expansion of small support facilities,
such as maintenance and storage
buildings and stables that are directly
related to the recreational activity. This
NWP does not authorize other
buildings, such as hotels, restaurants,
etc. The construction or expansion of
playing fields (e.g., baseball, soccer, or
football fields), basketball and tennis
courts, racetracks, stadiums, arenas, and
the construction of new ski areas are not
authorized by this NWP. (Section 404)
43. Stormlvater Management
Facilities. Discharges of dredged or fill
material into non-tidal waters of the US,
excluding non-tidal wetlands adjacent
to tidal waters, for the construction and
maintenance of stormwater management
facilities, including activities for the
excavation of stormwater ponds/
facilities, detention basins, aril
retention hasins; the installation and
maintenance of water control structures,
outfall structures and emergency
spillways; aril the maintenance
dredging of existing stormwater
management ponds/facilities and
detention and retention basins,
provided the activity meets all of the
following criteria:
a. The discharge for the construction
of new stormwater management
facilities does not cause the loss of
greater than 1h-acre of non-tictal waters
s of the US, excluding non-tidal wetland,
ad cent to tidal waters;
b. The discharge does not cause the
loss of greater than 300 linear-feet of a
e stream bed, unless for intermittent
stream beds this criterion is waived in
writing pursuant to a determination by
the District Engineer, as specified
s below, that the project complies with all
terms and conditions of this NWP and
that any adverse impacts of the project
on the aquatic environment are
minimal, both individually and
cumulatively;
c. For discharges causing the toss of
greater than 300 linear feet of
intermittent stream beds, the permittee
notifies the District Engineer in
accordance with the "Notification"
General Condition 13. In such cases, to
be authorized the District Engineer must
determine that the activity complies
with the other terms and conditions of
the NWP, determine the adverse
environmental effects are minimal both
individually and cumulatively, and
waive this limitation in writing before
the permittee may proceed;
d. The discharges of dredged or fill
material for the construction of new
stormwater management facilities in
perennial streams is not authorized;
e. For discharges or excavation for the
construction of new stormwater
management facilities or for the
maintenance of existing stormwater
management facilities causing the toss
of greater than 1/lo-acre of non-tidal
waters, excluding non-tidal wetlands
adjacent to tidal waters, provided the
perrnittee notifies the District Engineer
in accordance with the "Notification"
General Condition 13. In addition, the
notification must include:
(1) A maintenance plan. The
maintenance plan should be in
accordance with state and local
requirements, if any such requirements
exist;
(2) For discharges in special aquatic
sites, including wetlands and
submerged aquatic vegetation, the
notification must include a delineation
of affected areas; and
(3) A compensatory mitigation
proposal that offsets the loss of waters
of the US. Maintenance in constructed
areas will not require mitigation
provided such maintenance is
accomplished in designated
maintenance areas and not within
compensatory mitigation areas (i.e.,
District Engineers may designate non-
maintenance areas, normally at the
downstream end of the stormwater
management facility, in existing
stormwater management facilities). (No
mitigation will be required for activities
that are exempt from Section 404 permit
s requirements);
f. The perrnittee must avoid and
minimize discharges into waters of the
US at the project site to the maximum
extent practicable, and the notification
must include a written statement to the
District Engineer detailing compliance
with this condition (i.e. why the
discharge must occur in waters of the
US and why additional minimization
cannot be achieved);
g. The stormwater management
facility must comply with General
Condition 21 and be designed using
BMPs and watershed protection
techniques. Examples may include
forebays (deeper areas at the upstream
end of the stormwater management
facility that would be maintained
through excavation), vegetated buffers,
and siting considerations to minimize
adverse effects to aquatic resources.
Another example of a BMP would be
bioengineering methods incorporated
into the facility design to benefit water
quality and minimize adverse effects to
aquatic resources from storm flows,
especially downstream of the facility,
that provide, to the maximum extent
practicable, for long term aquatic
resource protection and enhancement;
h. Maintenance excavation will be in
accordance with an approved
maintenance plan and will not exceed
the original contours of the facility as
approved and constructed; and
i. The discharge is part of a single and
complete project. (Section 404)
44. Mining Activities. Discharges of
dredged or fill material into:
(f) Isolated waters; streams where the
annual average flow is 1 cubic foot per
second or less, and non-tidal wetlands
adjacent to headwater streams, for
aggregate Inining (i.e., sand, gravel, and
crushed and broken stone) and
associated support activities;
(ii) Lower perennial streams,
excluding wetlands adjacent to lower
perennial streams, for aggregate mining
activities (support activities in lower
perennial streams or adjacent wetlands
are not authorized by this NWP); and/
or
(iii) Isolated waters and non-tidal
wetlands adjacent to headwater streams,
for hard rock/mineral mining activities
(i.e., extraction of metalliferous ores
from subsurface locations) and
associated support activities, provided
the discharge meets the following
criteria:
a. The mined area within waters of
the US, plus the acreage loss of waters
of the US resulting from support
activities, cannot exceed '/a-acre;
b. The permittee must avoid and
minimize cischarges into waters of the
Federal Register / Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 2089
US at the project site to the maximum
extent practicable, and the notification
must include a written statement
detailing compliance with this
condition (i.e., why the discharge trust
occur in waters of the US and why
additional minimization cannot be
achieved);
c. In addition to General Conditions
17 and 20, activities authorized by this
permit must not substantially alter the
sediment characteristics of areas of
concentrated shellfish beds or fish
spawning areas. Normally, the
mandated water quality management
plan should address these impacts;
d. The permittee must implement
necessary measures to prevent increases
in stream gradient and water velocities
and to prevent adverse effects (e.g., head
cutting, bank erosion) to upstream and
downstream channel conditions;
e. Activities authorized by this permit
must not result in adverse effects oil the
course, capacity, or condition of
navigable waters of the US;
f. The permittee must use measures to
minimize downstream turbidity;
g. Wetland impacts must be
compensated through mitigation
aph. pproved by the Corps;
Beneficiation and mineral
processing for hard rock/mineral mining
activities may not occur within 200 feet
of the ordinary high water mark of any
open waterbody. Although the Corps
does not regulate discharges from these
activities, a CWA section 402 permit
may be required;
i. All activities authorized must
comply with General Conditions 9 and
21. Further, the District Engineer may
require modifications to the required
water quality management plan to
ensure that the authorized work results
in minimal adverse effects to water
quality;
j. Except for aggregate mining
activities in lower perennial streams, no
aggregate training can occur within
stream beds where the average annual
flow is greater than 1 cubic foot per
second or in waters of the US within
100 feet of the ordinary high water mark
of headwater stream segments where the
average annual flow of the stream is
greater than 1 cubic foot per second
(aggregate mining can occur in areas
inunediately adjacent to the ordinary
high water mark of a stream where the
average annual flow is 1 cubic foot per
second or less);
k. Single and complete project: The
discharge must be for a single and
complete project, including support
activities. Discharges of dredged or fill
material into waters of the US for
multiple mining activities on several
designated parcels of it single and
complete mining operation can be
authorized by this NWP provided the
1/2-acre limit is not exceeded; and
I. Notification: The permittee must
notify the District Engineer in
accordance with General Condition 13.
The notification must include: (1) A
description of waters of the US
adversely affected by the project; (2) A
written statement to the District
Engineer detailing compliance with
paragraph (b), above (i.e., why the
discharge must occur in waters of the
US and why additional minimization
cannot be achieved); (3) A description of
measures taken to ensure that the
proposed work complies with
paragraphs (c) through (f), above; and (4)
A reclamation plan (for aggregate
mining in isolated waters and non-tidal
wetlands adjacent to headwaters and
hard rock/mineral mining only).
This NWP does not authorize hard
rock/mineral mining, including placer
mining, in streams. No hard rock/
mineral mining can occur in waters of
the US within 100 feet of the ordinary
high water mark of headwater streams.
The term's "headwaters" and "isolated
waters" are defined at 33 CFR 330.2(d)
and (e), respectively. For the purposes
of this NWP, the term "lower perennial
stream" is defined as follows: "A stream
in which the gradient is low and water
velocity is slow, there is no tidal
influence, some water flows throughout
the year, and the substrate consists
mainly of sand and mud." (Sections 10
and 404)
C. Nationwide Permit General
Conditions
The following General Conditions
must be followed in order for any
authorization by an NWP to be valid:
1. Navigation. No activity may cause
more than a minimal adverse effect on
navigation.
2. Proper Maintenance. Any structure
or fill authorized shall be properly
maintained, including maintenance to
ensure public safety.
3. Soil Erosion and Sediment
Controls. Appropriate soil erosion and
sediment controls must be used and
maintained in effective operating
condition during construction, and all
exposed soil and other fills, as well as
any work below the ordinary high water
mark or high tide line, must be
permanently stabilized at the earliest
practicable clate. Permittees are
encouraged to perform work within
waters of the United States cluring
periods of low-flow or no-flow.
4. Aquatic Life Movements. No
activity may substantially disrupt the
necessary life-cycle movements of those
species of aquatic life indigenous to the
waterbody, including those species that
normally migrate through the area,
unless the activity's primary purpose is
to impouud water. Culverts placed in
streams must be installed to maintain
low flow conditions.
5. Equipment. Heavy equipment
working in wetlands must be placed on
mats, or other measures must be taken
to minimize soil disturbance.
6. Regional and Case-Bv-Case
Conditions. The activity must comply
with any regional conditions that may
have been added by the Division
Engineer (see 33 CFR 330A(e)).
Additionally, any case specific
conditions added by the Corps or by the
state or tribe in its Section 401 Water
Quality Certification and Coastal Zone
Management Act consistency
determination.
7. Wild and Scenic Rivers. No activity
may occur in a component of the
National Wild and Scenic River System;
or in a river officially designated by
Congress as a "study river" for possible
inclusion in the system, while the river
is in an official study status; unless the
appropriate Federal agency, with direct
management responsibility for such
river, has determined in writing that the
proposed activity will not adversely
affect the Wild and Scenic River
designation, or study status. Information
on Wild and Scenic Rivers may be
obtained from the appropriate Federal
land management agency in the area
(e.g., National Park Service, U.S. Forest
Service, Bureau of Land Management,
U.S. Fish and Wildlife Service).
8. Tribal Rights. No activity or its
operation may impair reserved tribal
rights, including, but not limited to,
reserved water rights and treaty fishing
and hunting rights.
9. Water Quality. (a) In certain states
and tribal lands an individual 401 Water
Quality Certification must be obtained
or waived (See 33 CFR 330.4(c)).
(h) For NWI's 12, 14, 17, 18, 32, 39,
40, 42, 43, and 44, where the state or
tribal 401 certification (either
generically or individually) does not
require or approve water quality
management measures, the permittee
must provide water quality management
measures that will ensure that the
authorized work does not result in more
than minimal degradation of water
quality (or the Corps determines that
compliance with state or local
standards, where applicable, will ensure
no more than minimal adverse effect on
water quality). An important component
of water quality management includes
stornt?vater management that minimizes
degradation of the downstream aquatic
system, including water quality (refer to
General Condition 21 for storinwater
2090 Federal Register/Vol. (37, No. 10 / Tuesday, January 15, 2002/Notices
management requirements). Another
important component of water quality
management is the establishment and
maintenance of vegetated buffers next to
open waters, including streams (refer to
General Condition 19 for vegetated
buffer requirements for the NWPs).
This condition is only applicable to
projects that have the potential to affect
water quality. While appropriate
measures must be taken, ill most cases
it is not necessary to conduct detailed
studies to identify such measures or to
require monitoring.
10. Coastal Zone Management. In
certain states, an individual state coastal
zone management consistency
concurrence must be obtained or waived
(see Section 330.4(d)).
11. Endangered Species. (a) No
activity is authorized under any NWP
which is likely to jeopardize the
continued existence of a threatened or
endangered species or a species
proposed for such designation, as
identified under the Federal Endangered
Species Act (ESA), or which will
destroy or adversely modify the critical
habitat of such species. Non-federal
permittees shall notify the District
Engineer if any listed species or
designated critical habitat might be
affected or is in the vicinity of the
project, or is located in the designated
critical habitat and shall not begin work
on the activity until notified by the
District Engineer that the requirements
of the ESA have been satisfied and that
the activity is authorized. For activities
that may affect Federally-listed
endangered or threatened species or
designated critical habitat, the
notification must include the name(s) of
the endangered or threatened species
that may be affected by the proposed
work or that utilize the designated
critical habitat that may be affected by
the proposed work. As a result of formal
or informal consultation with the FWS
or NMFS the District Engineer may add
species-specific regional endangered
species conditions to the NWPs.
(b) Authorization of an activity by a
NWP does not authorize the "take" of a
threatened or endangered species as
defined under the ESA. In the absence
of separate authorization (e.g., an ESA
Section 10 Permit, a Biological Opinion
with "incidental take" provisions, etc.)
from the USFWS or the NMFS, both
lethal and non-lethal "takes" of
protected species are in violation of the
ESA. Information on the location of
threatened and endangered species and
their critical habitat can be obtained
directly from the offices of the USFWS
and NMFS or their world wide web
pages at http://wrv?v.fws.gov/r9endspp/ I
endspp.htrnl and http:11lvwi,v.nfms.gov1
prot_res/esohome.html respectively.
12. Historic Properties. No activity
which may affect historic properties
listed, or eligible for listing, in the
National Register of I Iistoric Places is
authorized, until the District Engineer
has complied with the provisions of 33
CFR part 325, Appendix C. The
prospective permittee must notify the
District Engineer if the authorized
activity may affect any historic
propetties listed, determined to be
eligible, or which the prospective
permittee has reason to believe may be
eligible for listing on the National
Register of Historic Places, and shall not
begin the activity until notified by the
District Engineer that the requirements
of the National Historic Preservation Act
have been satisfied and that the activity
is authorized. Information on the
location and existence of historic
resources can be obtained from the State
Historic Preservation Office and the
National Register of Historic Places (see
33 CFR 330.4(g)). For activities that may
affect historic properties listed in, or
eligible for listing in, the National
Register of Historic Places, the
notification must state which historic
property may be affected by the
proposed work or include a vicinity
map indicating the location of the
historic property.
13. Notification.
(a) Timing; where required by the
terms of the NWP, the prospective
permittee must notify the District
Engineer with a preconstruction
notification (PCN) as early as possible.
The District Engineer must determine if
the notification is complete within 30
days of the date of receipt and can
request additional information
necessary to make the PCN complete
only once. However, if the prospective
permittee does not provide all of the
requested information, then the District
Engineer will notify the prospective
permittee that the notification is still
incomplete and the PCN review process
will not commence until all of the
requested information has been received
by the District Engineer. The
prospective permittee shall not begin
the activity:
(1) Until notified in writing by the
District Engineer that the activity may
proceed under the NWP with any
special conditions imposed by the
District or Division Engineer; or
(2) If notified in writing by the District
or Division Engineer that an Individual
Permit is required; or
(3) Unless 45 days have passed from
the District Engineer's receipt of the
complete notification and the
)rospective permittee has not received
written notice from the District or
Division Engineer. Subsequently, the
perinittec's right to proceed under the
NWI' may be modified, suspended, or
revoked only in accordance with the
procedure set forth in 33 CFR
330.5(4)(2).
(b) Contents of Notification: The
notification must be in writing and
include the following information:
(1) Name, address and telephone
numbers of the prospective permittee;
(2) Location of the proposed project;
(3) Brief description of the proposed
project; the project's purpose; direct and
indirect adverse environmental effects
the project would cause; any other
NWP(s), Regional General Permit(s), or
Individual Permit(s) used or intended to
be used to authorize any part of the
proposed project or any related activity.
Sketches should be provided when
necessary to show that the activity
complies with the terms of the NWP
(Sketches usually clarify the project and
when provided result in a quicker
decision.);
(4) For NWPs 7, 12, 14, 18, 21, 34, 38,
39, 41, 42, and 43, the PCN must also
include a delineation of affected special
aquatic sites, including wetlands,
vegetated shallows (e.g., submerged
aquatic vegetation, seagrass beds), and
riffle and pool complexes (see paragraph
13(0);
(5) For NWP 7 (Outfall Structures and
Maintenarice), the PCN must include
information regarding the original
design capacities and configurations of
those areas of the facility where
maintenance dredging or excavation is
proposed;
(6) For NWP 14 (Linear
Transportation Crossings), the PCN
must include a compensatory mitigation
proposal to offset permanent losses of
waters of the US and a statement
describing how temporary losses of
waters of the US will be minimized to
the maximum extent practicable;
(7) For NWP 21 (Surface Coal Mining
Activities), the PCN must include an
Office of Surface Mining (OSM) or state-
approved mitigation plan, if applicable.
To be authorized by this NWP, the
District Engineer trust determine that
the activity complies with the terms and
conditions of the NWI' and that the
adverse environmental effects are
minimal both individually and
cumulatively and must notify the
project sponsor of this determination in
writing;
(8) For NWP 27 (Stream and Wetland
Restoration), the PCN must include
documentation of the prior condition of
the site that will he reverted by the
permittee;
Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 2091
(9) For NWP 29 (Single-Family
Housing), the PCN must also include: waters of the US or justification
explaining why com
ensator affected by the proposed work or utilize
h
d

(i) Any past use of this NWP by the
Individual Perrnittee a
d/
th p
y
mitigation should not he required. For t
e
esignated critical habitat that may
be affected by the proposed work; and
n
or
e
permittee's spouse;
(ii) A statement that the single-famil cischarges that cause the loss of greater
than 300 linear feet of an intermittent
b (18) For activities that may affect
historic properties listed in, or eligible
y
housing activity is for a personal stream
ed, to be authorized, the Distric
Engineer must determine that the t for listing in, the National Register of
Historic Places
the PCN
t
t

residence of tyre permittee;
(iii) A description of the entire parcel,
activity complies with the other teems
and conditions of the NWP
d ,
mus
s
ate
which historic property may be affected
b

including its size, and a delineation of
wetlands. For the pur
ose of this NWP ,
etermine
adverse environmental effects are y the proposed work or include a
vicinity map indicating the location of
p
,
parcels of land measuring IA-acre or less
will not require a formal on-site minimal both individually and
cumulatively, and waive the limitation the historic property.
(c) Form of Notification: The standard

delineation. However, the applicant on stream impacts in writing before the
it Individual Permit application form

shall provide an indication of where the perm
tee may proceed;
(14) For NWP 40 (Agricultural (Form ENG 4345) may be used as the
notification but must clearly indicate
wetlands are and the amount of
wetlands that exists on the property
For Activities), the PCN must include a
com
e
t
i
i that it is a PCN and must include all of
.
parcels greater than 1/4-acre in size, p
nsa
ory m
t
gation proposal to
offset losses of waters of the US. This the information required in (b) (1)-(18)
of General Condition 13
A lett

formal wetland delineation must be
prepared in accordance with the current
NWP does not authorize the relocation
of greater than 300 linear-feet of existing .
er
containing the requisite information
may also be used

method required by the Corps. (See
serviceable drainage ditches constructed .
(d) District Engineer's Decision: In
paragraph 13(f));
(iv) A written description of all land in non-tidal streams unless, for drainage
ditches constructed in intermittent rion- reviewing the PCN for the proposed
activity, the District En
ineer will
(including, if available, legal
descriptions) owned by the
ros
ective tidal streams, the District Engineer
w
i
thi
i g
determine whether the activity
p
p
permittee and/or the prospective
' ves
a
s cr
terion in writing, and the
District Engineer has determined that authorized by the NWP will result in
more than minimal individual or
permittee
s spouse, within a one mile
radius of the parcel, in any form of the project complies with all terms and
conditions of this NWP, and that any cumulative adverse environmental
effects or may be contrary to the public
ownership (including any land owned adverse impacts of the project on the interest. The prospective permittee may
as a partner, corporation, joint tenant, aquatic environment are minimal, both submit a proposed mitigation plan with
co-tenant, or as a tenant-by- the-entirety)
and any land on which a purchase and individually and cumulatively;
(15) For NWP 43 (Storrnwater the PCN to expedite the process. The
District Engineer will consider a

sale agreement or other contract for sale
Management Facilities), the PCN must ny
proposed compensatory mitigation the
or purchase has been executed;
(10) For NWP 31 (Maintenance of include, for the construction of new
stormwater management facilities, a applicant has included in the proposal
in determining whether the net adverse
Existing Flood Control Projects), the maintenance plan (in accordance with environmental effects to the aquatic
prospective permittee must either notify
h state and local requirements, if environment of the proposed work are
t
e District Engineer with a PCN prior applicable) and a compensatory minimal. If the District Engineer
to each maintenance activity or submit mitigation proposal to offset losses of determines that the activity complies
a five year (or less) maintenance plan. waters of the US. For discharges that with the terms and conditions of the
In addition, the PCN must include all of cause the loss of greater than 300 linear NWP and that the adverse effects on the
the following:
(i) Sufficient baseline information feet of an intermittent stream bed, to be
authorized, the District Engineer must aquatic environment are minimal, after
considering riuiti
ation
the Di
t
i
t
identifying the approved channel
depths and configurations and existing determine hat the activity complies
with the other terms and conditions of g
,
s
r
c
Engineer will notify the permittee and
include any conditions the District
facilities. Minor deviations are
authorized, provided the approved flood the NWP, determine adverse
environmental effects are minimal both Engineer deems necessary. The District
Engineer must approve any
control protection or drainage is not
increased individually and cumulatively, and
i
h compensatory mitigation proposal
;
(ii) A delineation of any affected wa
ve t
e limitation on stream impacts
in writing before the permittee may before the permittee commences work.
If the prospective permittee is required
special aquatic sites, including proceed; to submit a compensatory mitigation
wetlands; and,
(iii) Location of the dredged material (16) For NWl' 44 (Mining Activities),
the PCN must include a description of proposal with the PCN, the proposal
may be either conceptual or detailed
If
disposal site;
(11) For NWP 33 (Temporary all waters of the US adversely affected
by the project, a description of measures .
the prospective permittee elects to
submit a compensatory mitigation
lan
Construction, Access, and Dewaterind
the PCN must also include a restoration taken to minimize adverse effects to
waters of the US, a description of p
with the PCN, the District Engineer will
expeditiously review the proposed
plan of reasonable measures to avoid
end minimize adverse effects to aquatic measures taken to comply with the
criteria of tine NWP, and a reclamation compensatory mitigation plan. The
District Engineer must review the
lan
resources;
(12) For NWl's 39, 43 and 44, the PCN plan (for all aggregate mining activities
in isolated waters and non-tidal p
within 45 clays of receiving a complete
PCN and determine whether the
must also include a written statement to
the District Engineer ex
lainin
w
h wetlands adjacent to headwaters and
h
d conceptual or specific proposed
p
g
o
avoidance and minimization for losses any
ar
rock/mineral mining
activities); mitigation would ensure no more than
nrininral adverse effe
t
th
i

of waters of the US were achieved on
the project site
(17) For activities that may adversely
ff c
s on
e aquat
c
environment. If the net adverse effects
;
(13) For NWI' 39 and NWP 42, the a
ect Federally-listed endangered or
threatened species
the PCN m
t of the project on the aquatic

PCN must include a compensatory
iti
i ,
us
include the name(s) of those encangered environment (after consideration of the
compensatory mitigation proposal) are
m
gat
on proposal to offset losses of or threatened species that may be determined by the District Engineer to
:;
2092 Federal Register/Vol, 67, No. 10/Tuesday, )anuarv 15. 2002/ NntirPs
be minimal, the District Engineer will
provide a timely written response to th
the
applicant. The response will state that
the project can proceed under the terms
and conditions of the NWP.
If the District Engineer determines
that the adverse effects of the proposed
work are more than minimal, then the
District Engineer will notify the
applicant either: (1) That the project
does not qualify for authorization under
the NWP and instruct the applicant on
the procedures to seek authorization
under an Individual Permit; (2) that the
project is authorized under the NWP
subject to the applicant's submission of
a mitigation proposal that would reduce
the adverse effects on the aquatic
environment to the minimal level; or (3)
that the project is authorized under the
NWP with specific modifications or
conditions. Where the District Engineer
determines that mitigation is required to
ensure no more than minimal adverse
effects occur to the aquatic
environment, the activity will be
authorized within the 45-day PCN
period. The authorization will include
the necessary conceptual or specific
mitigation or a requirement that the
applicant submit a mitigation proposal
that would reduce the adverse effects on
the aquatic environment to the minimal
level. When conceptual mitigation is
included, or a mitigation plan is
required under item (2) above, no work
in waters of the US will occur until the
District Engineer has approved a
specific mitigation plan.
(e) Agency Coordination: The District
Engineer will consider any comments
from Federal and state agencies
concerning the proposed activity's
compliance with the terms and
conditions of the NWPs and the need for
mitigation to reduce the project's
adverse environmental effects to a
minimal level. ,
For activities requiring notification to
the District Engineer that result in the
loss of greater than 1/2-acre of waters of
the US, the District Engineer will
provide immediately (e.g., via facsimile
transmission, overnight mail, or other
expeditious manner) a copy to the
appropriate Federal or state offices
(USF'WS, state natural resource or water
quality agency, EPA, State Historic
Preservation Officer (SHPO), and, if
appropriate, the NMFS). With the
exception of NWP 37, these agencies
will then have 10 calendar days from
the date the material is transmitted to
telephone or fax the District Engineer
notice that they intend to provide
substantive, site-specific comments. If
so contacted by an agelicy, the District
Engineer will wait an additional 15
calendar days before making a decision
on the notification. The District
Engineer will fully consider agency
comments received within the specified
time frame, but will provide no
response to the resource agency, except
as provided below. The District
Engineer will indicate in the
administrative record associated with
each notification that the resource
agencies' concerns were considered. As
required by section 305(b)(4)(13) of the
Magnuson-Stevens Fishery
Conservation and Management Act, the
District Engineer will provide a
response to NMFS within 30 days of
receipt of any Essential Fish Habitat
conservation recommendations.
Applicants are encouraged to provide
the Corps multiple copies of
notifications to expedite agency
notification.
(f) Wetland Delineations: Wetland
delineations must be prepared in
accordance with the current method
required by the Corps (For NWP 29 see
paragraph (b)(9)(iii) for parcels less than
(1/,-acre in size). The permittee may ask
the Corps to delineate the special
aquatic site. There may be some delay
if the Corps does the delineation.
Furthermore, the 45-day period will not
start until the wetland delineation has
been completed and submitted to the
Corps, where appropriate.
14. Compliance Certification. Every
permittee who has received NWP
verification from the Corps will submit
a signed certification regarding the
completed work and any required
mitigation. The certification will be
forwarded by the Corps with the
authorization letter and will include:
(a) A statement that the authorized
work was done in accordance with the
Corps authorization, including any
general or specific conditions;
(b) A statement that any required
mitigation was completed in accordance
with the permit conditions; and
(c) The signature of the permittee
certifying the completion of the work
and mitigation.
15. Use of Multiple Nationwide
Permits. The use of more than one NWP
for a single and complete project is
prohibited, except when the acreage loss
of waters of the US authorized by the
NWPs does not exceed the acreage limit
of the NWP with the highest specified
acreage limit (e,g, if a road crossing over
tidal waters is constructed under NWP
14, with associated bank stabilization
authorized by NWP 13, the maximum
acreage loss of waters of the US for the
total project cannot exceed 1h-acre).
16. Water Supply Intakes. No activity,
including structures and work in
navigable waters of the US or discharges
of dredged or fill material, may occur in
the proximity of a public water supply
intake except where the activity is for
l repair of the public water supply intake
structures or adjacent bank stabilization.
17. Shellfish Beds. No activity,
including structures and work in
navigable waters of the US or discharges
of dredged or fill material, may occur in
areas of concentrated shellfish
populations, unless the activity is
directly related to a shellfish harvesting
activity authorized by NWP 4.
18. Suitable Material. No activity,
including structures and work in
navigable waters of the US or discharges
of dredged or fill material, may consist
of unsuitable material (e.g., trash,
debris, car bodies, asphalt, etc.) and
material used for construction or
discharged must be free front toxic
pollutants in toxic amounts (see section
307 of the CWA).
19. Mitigation. The District Engineer
will consider the factors discussed
below when determining the
acceptability of appropriate and
practicable mitigation necessary to
offset adverse effects on the aquatic
environment that are more than
minimal.
(a) The project must be designed and
constructed to avoid and minimize
adverse effects to waters of the US to the
maximum extent practicable at the
project site (i.e„ on site).
(b) Mitigation in all its forms
(avoiding, minimizing, rectifying,
reducing or compensating) will be
required to the extent necessary to
ensure that the adverse effects to the
aquatic environment are minimal.
(c) Compensatory mitigation at a
rninimum one-for-one ratio will be
required for all wetland impacts
requiring a PCN, unless the District
Engineer determines in writing that
some other form of mitigation would be
more environmentally appropriate and
provides a project-specific waiver of this
requirement. Consistent with National
policy, the District Engineer will
establish a preference for restoration of
wetlands as compensatory mitigation,
with preservation used only in
exceptional circumstances.
(d) Compensatory mitigation (i.e.,
replacement or substitution of aquatic
resources for those impacted) will not
be used to increase the acreage losses
allowed by the acreage limits of some of
the NWPs. For example,'/4-acre of
wetlands cannot be created to change a
'A-acre loss of wetlands to a 1/2-acre loss
associated with NWP 39 verification.
I lowever, 1h-acre of created wetlands
can be used to reduce the impacts of a
1/2-acre loss of wetlands to the mininium
impact level in order to meet the
Federal Register / Vol. 67, No. 10 /Tuesday, January 15, 2002 / Notices 2093
minimal impact requirement associated
with NWPs.
(e) To be practicable, the mitigation
must be available and capable of being
done considering costs, existing
technology, and logistics in light of the
overall project purposes. Examples of
rnitigation that may be appropriate and
practicable include, but are not limited
to: reducing the size of the project;
establishing and maintaining wetland or
upland vegetated buffers to protect open
waters such as streams; and replacing
losses of aquatic resource functions and
values by creating, restoring, enhancing,
or preserving similar functions and
values, preferably in the same
watershed.
(f) Compensatory mitigation plans for
projects in or near streams or other open
waters will normally include a
requirement for the establishment,
maintenance, and legal protection (e.g.,
easements, deed restrictions) of
vegetated buffers to open waters. In
many cases, vegetated buffers will be
the only compensatory mitigation
required. Vegetated buffers should
consist of native species. The width of
the vegetated buffers required will
address documented water quality or
aquatic habitat loss concerns. Normally,
the vegetated buffer will be 25 to 50 feet
wide on each side of the stream, but the
District Engineers may require slightly
wider vegetated buffers to address
documented water quality or habitat
loss concerns. Where both wetlands and
open waters exist on the project site, the
Corps will determine the appropriate
compensatory mitigation (e.g., stream
buffers or wetlands compensation)
based on what is best for the aquatic
environment on a watershed basis. In
cases where vegetated buffers are
determined to be the most appropriate
form of compensatory mitigation, the
District Engineer"may waive or reduce
the requirement to provide wetland
compensatory mitigation for wetland
impacts.
(g) Compensatory mitigation
proposals submitted with the
"notification'' may be either conceptual
or detailed. If conceptual plans are
approved under the verification, then
the Corps will condition the verification
to require detailed plans be submitted
and approved by the Corps prior to
construction of the authorized activity
in waters of the US.
(h) Permittees may propose the use of
mitigation banks, in-lieu fee
arrangements or separate activity-
specific compensatory mitigation. In all
cases that require compensatory
mitigation, the mitigation provisions
will specify the party responsible for
accomplishing and/or complying with
the rnitigation plan.
20. Spawning Areas. Activities,
including structures and work in
navigable waters of the US or discharges
of dredged or fill material, in spawning
areas during spawning seasons must be
avoided to the maximum extent
practicable. Activities that result in the
physical destruction (e.&, excavate, fill,
or smother downstream by substantial
turbidity) of an important spawning area
are nbt authorized.
21, Management of Water Flows. To
the maximum extent practicable, the
activity must be designed to maintain
preconstruction downstream flow
conditions (e.g., location, capacity, and
flow rates). Furthermore, the activity
must not permanently restrict or impede
the passage of normal or expected high
flows (unless the primary purpose of the
fill is to impound waters) and the
structure or discharge of dredged or fill
material must withstand expected high
flows. The activity must, to the
maximum extent practicable, provide
for retaining excess flows from the site,
provide for maintaining surface flow
rates from the site similar to
preconstruction conditions, and provide
for not increasing water flows from the
project site, relocating water, or
redirecting water flow beyond
preconstruction conditions. Stream
channelizing will be reduced to the
minimal amount necessary, and the
activity must, to the maximum extent
practicable, reduce adverse effects such
as flooding or erosion downstream and
upstream of the project site, unless the
activity is part of a larger system
designed to manage water flows. In most
cases, it will not be a requirement to
conduct detailed studies and monitoring
of water flow.
This condition is only applicable to
projects that have the potential to affect
waterflows. While appropriate measures
must be taken, it is not necessary to
conduct detailed studies to identify
such measures or require monitoring to
ensure their effectiveness. Normally, the
Corps will defer to state and local
authorities regarding management of
water flow.
22. Adverse Effects From
Irnpoundrnents. If the activity creates an
impoundment of water, adverse effects
to the aquatic system due to the
acceleration of the passage of water,
and/or the restricting its flow shall be
minimized to the maximum extent
practicable. This includes structures
and work in navigable waters of the US,
or discharges of dredged or fill material.
23. Water fowl Breeding Areas.
Activities, including structures and
work in navigable waters of the US or
discharges of dredged or fill material,
into breeding areas for migratory
waterfowl must be avoided to the
maximum extent practicable.
24. Removal of Temporary Fills, Am,
temporary fills must be removed in their
entirety and the affected areas returned
to their preexisting elevation.
25. Designated Critical Resource
Waters. Critical resource waters include,
NOAH-designated marine sanctuaries,
National Estuarine Research Reserves,
National Wild and Scenic Rivers,
critical habitat for Federally listed
threatened and endangered species,
coral reefs, state natural heritage sites,
and outstanding national resource
waters or other waters officially
designated by a state as having
particular environmental or ecological
significance and identified by the
District Engineer after notice and
opportunity for public comment. The
District Engineer may also designate
additional critical resource waters after
notice and opportunity for comment.
(a) Except as noted below, discharges
of dredged or fill material into waters of
the US are not authorized by NWPs 7,
12, 14, 16, 17, 21, 29, 31, 35, 39, 40, 42,
43, and 44 for any activity within, or
directly affecting, critical resource
waters, including wetlands adjacent to
such waters. Discharges of dredged or
fill materials into waters of the US may
be authorized by the above NWPs in
National Wild and Scenic Rivers if the
activity complies with General
Condition 7. Further, such discharges
may be authorized in designated critical
habitat for Federally listed threatened or
endangered species if the activity
complies with General Condition 11 and
the USFWS or the NMFS has concurred
in a determination of compliance with
this condition.
(b) For N1 VPs 3, 8, 10, 13, 15, 18, 19,
22, 23, 25, 27, 28, 30, 33, 34, 36, 37, and
38, notification is required in
accordance with General Condition 13,
for any activity proposed in the
designated critical resource waters
including wetlands adjacent to those
waters. The District Engineer may
authorize activities under these NWPs
only after it is determined that the
impacts to the critical resource waters
will be no more than minirrual.
26. Fills within 100-Year F'loodploins.
For purposes of this General Condition,
100-year floodplains will be identified
through the existing Federal Emergency
Management Agency's (FEMA) Flood
Insurance Rate Maps or FEMA-approved
local floodplain maps.
(a) Discharges in Floodplain; Below
Heoduvaters. Discharges of dredged or
fill material into waters of the US within
the mapped 100-year floodplain, below
2094 Federal Register/Vol. 67, No. 10 / Tuesday, January 15, 2002/Notices
headwaters (i.e. five cfs), resulting in
permanent above-grade fills, are not
authorized by NWPs 39, 40, 42, 43, and
44.
(b) Discharges in Floodwav; Above
Headwaters. Discharges of dredged or
fill material into waters of the US within
the FEMA or locally mapped floodway,
resulting in permanent above-grade fills,
are not authorized by NWT's 39, 40, 42,
arid 44.
(c) The permittee must comply with
any applicable FEMA-approved state or
local floodplain management
requirements.
27. Construction Period. For activities
that have not been verified by the Corps
and the project was commenced or
under contract to commence by the
expiration date of the NWP (or
modification or revocation date), the
work must be completed within 12-
months after such date (including anv
modification that affects the project).
For activities that have been verified
and the project was commenced or
under contract to commence within the
verification period, the work must be
completed by the date determined by
the Corps.
For projects that have been verified by
the Corps, an extension of a Corps
approved completion date maybe
requested. This request must be
submitted at least one month before the
previously approved completion date.
D. Further Information
1. District Engineers have authority to
determine if an activity complies with
the terms and conditions of an NW-P,
2. NWPs do not obviate the need to
obtain other Federal, state, or local
permits, approvals, or authorizations
required by law.
3. NWPs do not grant any property
rights or exclusive privileges.
4. NWPs do not authorize any injury
to the property or rights of others.
5. NWPs do not authorize interference
with any existing or proposed Federal
project.
E. Definitions
Best Management Practices (BMPs):
BMPs are policies, practices,
procedures, or structures implemented
to mitigate the adverse environmental
effects on surface water quality resulting
from development. BMPs are
categorized as structural or non-
structural. A BMP policy may affect the
limits on a development.
Compensatory Mitigation: For
Purposes Of Section 10/404,
compensatory mitigation is the
restoration, creation, enhancement, or in
exceptional circumstances, preservation
of wetlands and/or other aquatic
resources for the purpose of
compensating for unavoidable adverse
impacts which remain after all
appropriate and practicable avoidance
and minimization has been achieved.
Creation: The establishment of a
wetland or other aquatic resource where
one did not formerly exist.
Fnhoncernent: Activities conducted in
existing wetlands or other aquatic
resources that increase one or more
aquatic functions.
Ephemeral Stream: An ephemeral
stream has flowing water only during
and for a short duration after,
precipitation events in a typical year.
Ephemeral stream beds are located
above the water table year-round.
Groundwater is not a source of water for
the stream. Runoff from rainfall is the
primary source of water for stream flow.
Farm Tract: A unit of contiguous land
under one ownership that is operated as
a farm or part of a.farm.
Flood Fringe: That portion of the 100-
year floodplain outside of the floodway
(often referred to as "floodway fringe").
Floodway: The area regulated by
Federal, state, or local requirements to
provide for the discharge of the base
flood so the cumulative increase in
water surface elevation is no more than
a designated amount (not to exceed one
foot as set by the National Flood
Insurance Program) within the 100-year
floodplain.
Independent Utility: A test to
determine what constitutes a single and
complete project in the Corps regulatory
program. A project is considered to have
independent utility if it would be
constructed absent the construction of
other projects in the project area.
Portions of a multi-phase project that
depend upon other phases of the project
do not have independent utility, Phases
of a project that would be constructed
even if the other phases were not built
can be considered as separate single and
complete projects with independent
utility.
Intermittent Stream: An intermittent
stream has flowing water during certain
times of the year, when groundwater
provides water for stream flow. During
dry periods, intermittent streams may
not have flowing water. Runoff from
rainfall is a supplemental source of
water for stream flow.
Loss of Waters of the US: Waters of
the US that include the filled area and
other waters that are permanently
adversely affected by flooding,
excavation, or drainage because of the
regulated activity. Permanent adverse
effects include permanent above-grade,
at-grade, or below-grade fills that change
an aquatic area to dry land, increase the
bottom elevation of a waterbody, or
change the use of a waterbody. The
acreage of loss of waters of the US is the
threshold nreasurentent of the impact to
existing waters for determining whether
a project may qualify for an MVP; it is
not a net threshold that is calculated
after considering compensatory
mitigation that may be used to offset
losses of aquatic functions and values.
The loss of stream bed includes the
linear feet of stream bed that is filled or
excavated. Waters of the US temporarily
filled, flooded, excavated, or drained,
but restored to preconstruction contours
and elevations after construction, are
not included in the measurement of loss
of waters of the US. Impacts to
ephemeral waters are only not included
in the acreage or linear foot
measurements of loss of waters of the
US or loss. of stream bed, for the purpose
of determining compliance with the
threshold limits of the NW-Ps.
Non-tidal Wetland: A non-tidal
wetland is a wetland (i.e., a water of the
US) that is not subject to the ebb and
flow of tidal waters. The definition of a
wetland can be found at 33 CFR
328.3(b). Non-tidal wetlands contiguous
to tidal waters are located landward of
the high tide line (i.e., spring high tide
line).
Open Water: An area that, during a
year with normal patterns of
precipitation, has standing or flowing
water for sufficient duration to establish
an ordinary high water mark. Aquatic
vegetation within the area of standing or
flowing water is either non-emergent,
sparse, or absent. Vegetated shallows are
considered to be open waters. The term
"open water" includes rivers, streams,
lakes, and ponds. For the purposes of
the NWPs, this term does not include
ephemeral waters,
Perennial Stream: A perennial stream
has flowing water year-round during a
typical year. The water table is located
above the stream bed for most of the
year. Groundwater is the primary source
of water for stream flow. Runoff from
rainfall is a supplemental source of
water for stream flow.
Permanent Above-grade Fill: A
discharge of dredged or fill material into
waters of the US, including wetlands,
that results in a substanti rl increase in
ground elevation and permanently
converts part or all of the waterbody to
dry land. Structural fills authorized by
MVPs 3, 25, 36, etc. are not included.
Preservation: The protection of
ecologically important wetlands or other
aquatic resources in perpetuity through
the implementation of appropriate legal
and physical mechanisms. Preservation
may include protection of upland areas
adjacent to wetlands as necessary to
Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices 2095
ensure protection and/or enhancement
of the overall aquatic ecosystem.
Restoration: Re-establishment of
wetland and/or other aquatic resource
characteristics and function(s) at a site
where they have ceased to exist, or exist
in a substantially degraded state.
Riffle and Pool Complex: Riffle and
pool complexes are special aquatic sites
under the 404(b)(1) Guidelines. Riffle
and pool complexes sometimes
characterize steep gradient sections of
streams. Such stream sections are
recognizable by their hydraulic
characteristics. The rapid movement of
water over a course substrate in riffles
results in a rough flow, a turbulent
surface, and high dissolved oxygen
levels in the water. Pools are deeper
areas associated with riffles. A slower
stream velocity, a streaming flow, a
smooth surface, and a finer substrate
characterize pools.
Single and Complete Project: The
term "single and complete project" is
defined at 33 CFR'330.2(i) as the total
project proposed or accomplished by
one owner/developer or partnership or
other association of owners/developers
(see definition of independent utility).
For linear projects, the "single and
complete project" (i.e., a single and
complete crossing) will apply to each
crossing of a separate water of the US
(i.e., a single waterbody) at that location.
An exception is for linear projects
crossing a single waterbody several
times at separate and distant locations:
each crossing is considered a single and
complete project. However, individual
channels in a braided stream or river, or
individual arms of a large, irregularly
shaped wetland or lake, etc., are not
separate waterbodies.
Storm water Management: Stormwater
management is the mechanism for
controlling stormwater runoff for the
purposes of reducing downstream
erosion, water quality degradation, and
flooding and mitigating the adverse
effects of changes in land use on the
aquatic environment.
Storrnwater Management Facilities:
Storrnwater management facilities are
those facilities, including but not
limited to, stormwater retention and
detention ponds and BMPs, which
retain water for a period of time to
control runoff and/or improve the
quality (i.e., by reducing the
concentration of nutrients, sediments,
hazardous substances and other
pollutants) of stormwater runoff.
Stream Red: The substrate of the
stream channel between the ordinary
high water marks. The substrate may be
bedrock or inorganic particles that rane
in size from clay to boulders. Wetlands'
contiguous to the stream bed, but
outside of the ordinary high water
marks, are not considered part of the
stream bed.
Streorn Channelization: The
manipulation of a stream channel to
increase the rate of water flow through
the stream channel. Manipulation may
include deepening, widening,
straightening, armoring, or other
activities that change the stream cross-
section or other aspects of stream
channel geometry to increase the rate of
water flow through the stream channel.
A channelized stream remains a water
of the US, despite the modifications to
increase the rate of water flow.
Tidal Wetland: A tidal wetland is a
wetland (i.e., water of the US) that is
inundated by tidal waters. The
definitions of a wetland and tidal waters
can be found at 33 CFR 328.3(6) and 33
CFR 328.3(0, respectively. Tidal waters
rise and fall in a predictable and
measurable rhythm or cycle due to the
gravitational pulls of the moon and sun.
Tidal waters end where the rise and fall
of the water surface can no longer he
practically measured in a predictable
rhythm clue to masking by other waters,
wind, or other effects. Tidal wetlands
are located channelward of the high tide
line (i.e., spring high tide line) and are
inundated by tidal waters two times per
lunar month, during spring high tides.
Vegetated Buffer: A vegetated upland
or wetland area next to rivers, streams,
lakes, or other open waters which
separates the open water from
developed areas, including agricultural
land. Vegetated buffers provide a variety
of aquatic habitat functions and values
(e.g., aquatic habitat for fish and other
aquatic organisms, moderation of water
temperature changes, and detritus for
aquatic food webs) and help improve or
maintain local water quality. A
vegetated buffer can be established by
maintaining an existing vegetated area
or planting native trees, shrubs, and
herbaceous plants on land next to open-
waters. Mowed lawns are not
considered vegetated buffers because
they provide little or no aquatic habitat
functions and values. The establishment
and maintenance of vegetated buffers is
a method of compensatory mitigation
that can be used in conjunction with the
restoration, creation, enhancement, or
preservation of aquatic habitats to
ensure that activities authorized by
NWPs result in minimal adverse effects
to the aquatic environment. (See
General Condition 19.)
Vegetated Shallows: Vegetated
shallows are special aquatic sites under
the 404(b)(1) Guidelines. They are areas
that are permanently inundated and
under normal circumstances have
rooted aquatic vegetation, such as
seagrasses in marine and estuarine
systems and a variety of vascular rooted
plants in freshwater systems.
Waterbody: A waterbody is any area
that in a normal year has water flowing
or standing above ground to the extent
that evidence of an ordinary high water
mark is established. Wetlands
contiguous to the waterbody are
considered part of the waterbody.
[FK Doc. 02-539 Filed 1-1z-02; 8:45 am[
BILLING CODE 3710-92-P
6692 Federal Register/ Vol, 07, No. 30 / Wednesday, February 13, 2002 / Notices
ADDRESSES). The holding of such
hearing is at the discretion of the
Assistant Administrator for Fisheries,
NOAH. All statements and opinions
contained in the permit action
sununaries are those of the applicant
and do not necessarily reflect the views
of NMFS.
Species Covered in This Notice
The following species are covered in
this notice:
Sea hurtles
Threatened and endangered green
turtle (Chelonia mydas)
Endangered hawksbill turtle
(Eretmochelys imbricata)
Endangered Kemp's ridley turtle
(Lepidochelys kempii)
Endangered leatherback turtle
(Derrnochelys coriacea)
Threatened loggerhead turtle (Coretta
caretto)
Application 1361
The applicant,is applying for a 5-year
permit to trawl for turtles, as needed, at
dredge and other construction/
destruction sites to remove the turtles to
a safe location. The turtles will be
captured, tagged, measured and released
offshore away from the dredging
activities. The applicant expects to
capture and relocate 95 green, 11
hawksbill, 160 loggerhead, 14 Kemp's
ridley and 4 leatherback turtles on the
Atlantic coast and 105 green, 17
hawksbill, 160 loggerhead, 50 Kemp's
ridley and 11 leatherback turtles on the
Gulf coast.
Dated: February 7, 2002.
Jill Lewandowski,
Acting Chief, Permits, Conservation, and
Education Division, Office of Protected
Resources, National Marine Fisheries Service.
[FK Doc. 02-3522 Filed 2-12-02; 8:45 aril
BILLING CODE 3510.22-S
DEPARTMENT OF DEFENSE
Department of the Army, Corps of
Engineers
Issuance of Nationwide Permits;
Notice; Correction
AGENCY: Array Corps of Engineers, Dull.
ACTION: Final notice; correction.
SUMMARY: This document contains
corrections to the final notice of
issuance of Nationwide Permits (NWI's)
which was published in the Federal
Register on Tuesday, January 15, 2002
(67 FR 2020-2095).
ADDRESSES: IIQUSACE, ATTN: CECW-
OR, 441 "G" Street, NW., Washington,
DC; 20314-1000,
FOR FURTHER INFORMATION CONTACT: Mr.
David Olson, at [phone], Mr.
Kirk Stark, at [phone] or Ms.
Leese Beal at (202) 7G1--4599 or access
the U.S. Army Corps of Engineers
Regulatory Home Page at: http://
www.tisace,army.miI/inet/functions/
cw/cecwo/reg/.
SUPPLEMENTARY INFORMATION: In the
SUMMARY section on page 2020, the third
and fourth sentences are corrected to
react: "All NWPs except NWPs 3, 7, 12,
14, 27, 39, 40, 41, 42, 43, and 44 expire
On February 11, 2002. Existing NWPs 3,
7, 12, 14, 27, 39, 40, 41, 42, 43, and 44
expire on March 18, 2002." In the last
sentence of the SUMMARY section, the
expiration date is corrected as "March
18, 2007", instead of "March 19, 2007
On page 2020, in second sentence of
the DATES section, the expiration date is
corrected as "March 18, 2007", instead
of "March 19, 2007". 'T'herefore, the
NWPs published in the January 15,
2002; Federal Register will expire on
March 18, 2007, five years from their
effective date of March 18, 2002.
On page 2020, in the fifth paragraph
of the Background section, the third and
fourth sentences are corrected to react:
"All NWPs except NWPs 3, 7, 12, 14,
27, 39, 40, 41, 42, 43, and 44 expire on
February 11, 2002. Existing NWPs 3, 7,
12, 14, 27, 39, 40, 41, 42, 43, and 44
expire on March 18, 2002." The
expiration date in the last sentence of
this paragraph is corrected as "March
18, 2007", instead of "March 19, 2007".
On page 2020, the paragraph in the
section entitled "Grandfather Provision
for Expiring NWPs at 33 CFR 330.6" is
corrected to read: "Activities authorized
by the current NWPs issued on
December 13, 1996, (except NWI's 3, 7,
12, 14, 27, 39, 40, 41, 42, 43, and 44),
that have commenced or are under
contract to commence by February 11,
2002, will have until February 11, 2003,
to complete the activity. Activities
authorized by NWPs 3, 7, 12, 14, 27, 39,
40, 41, 42, 43, and 44, that were issued
on March 9, 2000, that are commenced
or colder contract to commence by
March 18, 2002, will have until March
18, 2003, to complete the activity."
On page 2020, in the "Clean Water
Act Section 401 Water Quality
Certification (WQC) and Coastal "Lone
Management Act (CZMA) Consistency
Agreement" section, the clate in the fifth
sentence is corrected as "February 11,
2002", instead of "February 11, 2001 ".
On page 2023, third column, last
sentence, the number 29 is replaced
with the number 19, because this
sentence refers to General Condition 19.
On page 2024, first column, in the
fourth sentence of the last paragraph the
phrase "less than" is replaced by
"greater than" because the 30 day
completeness review period for NWP
pre-constructiou notifications is greater
than the 15 clay completeness review
period for standard permit applications.
On page 2031, second column, second
full paragraph, the number 31 is
replaced with the number 3 because this
paragraph refers to NWP 3.
On page 2044, second column, fourth
complete paragraph, the title is
corrected to react "Stream and Wetland
Restoration Activities" because that is
the title of NWP 27.
On page 2054, second column, the
year cited in the third sentence of the
second paragraph is the year 2000, not
199Ei.
On page 2058, third column, in the
second sentence of the second complete
paragraph the word "intermittent" is
inserted before the phrase "stream bed"
because the waiver for filling or
excavating greater than 300 linear feet of
stream beds can apply only to
intermittent stream beds.
On page 2072, third column, last
sentence, the number 19 is inserted after
the term "General Condition" since this
sentence refers to General Condition 19.
On page 2076, second column, the
street address for the Walla Walla
District Engineer is corrected to read
"201 N. Third Avenue".
On page 2080, second column, third
paragraph from the top of the column
(in the "Notification" section of NWP
12), the word "or" at the end of
paragraph (e) is deleted and the period
at the end of the fourth paragraph
(paragraph (f)) is replaced with "; or".
On page 2080, second column,
paragraph (a) of NWP 13 is corrected to
read: "No material is placed in excess of
the minimum needed for erosion
protection;" The change was not
intended and we are correcting this
paragraph by reinstating the original
text as it appeared in the version of
NWP 13 published in the December 13,
1996, Federal Register (61 FR 65915).
On page 2080, third column, the word
"or" is inserted at the end of paragraph
(a)(1) of NWP 14, Linear Transportation
Projects. Paragraph (a) of NWT' 14 is
corrected to read: "a. This NWP is
subject to the following acreage limits:
(1) For linear transportation projects in
non-ticlal waters, provided the discharge
clots not cause the loss of greater than
r/z-acre of waters of the US; or (2) For
linear transportation projects in tidal
waters, provided the discharge does not
cause the loss of greater than 1/3-acre of
waters of the US."
Oil page 2085, second colunur, the
last sentence of NWP 36 is corrected to
read as follows: "Dredging to provide
federal Register/ Vol. 67, No. 30/Wednesday, February 13, 2002 /Notices 6693
access to the boat ramp may be
authorized by another NWP, regional
general permit, or individual permit
pursuant to section 10 if located in
navigable waters of the United States.
* * *" The change was not intenced
and we are correcting this paragraph by
reinstating the original text as it
appeared in the version of NWP 36
published in the December 13, 1996,
Federal Register (61 FR 65919).
On page 208G, in the second full
paragraph of the second column,
"paragraph (e)" in the second sentence
is replaced with "paragraph (f)" and
"paragraph (i)" in the third sentence is
replaced with "paragraph (j)" to
accurately cite the previous paragraphs
of NWP 39. The last two sentences of
the paragraph before the subdivision
paragraph were incorrectly divided into
two sentences from the original single
sentence and identified as being related
to General Condition 15. This change
was not intended and we are correcting
this paragraph by reinstating the
original last sentence as it exists in the
March 9, 2000, text of NWP 39 (65 FR
12890).
On page 2080, middle column, the
parenthetical statement at the end of the
Note at the end of NWP 39 is corrected
to read "* * * (except for ephemeral
waters, which do not require PCNs
under paragraph (c)(2), above; however,
activities that result in the loss of greater
than V,o acre of ephemeral waters
would require PCNs under paragraph
(c)(1), above)." The addition to the Note
was intended to clarify that under
paragraph (c)(2) only the loss of
ephemeral open waters were not
included in the requirement for a pre-
construction notification (PCN).
However, under paragraph (c)(1) all
ephemeral waters of the United States
are included in the measurement for the
I/,o acre PCN requirement. The
correction is ndeded because the
statement in the parentheses could he
incorrectly interpreted to apply to
paragraph (c)(1) and possibly to all
PCNs, not just those affected by
paragraph (c)(2).
For clarity, we are providing the text
of NWP 39 in its entirety, with the
corrections described above:
39. Residential. Commercial, and
Institutional levelopments. Discharges
of dredged or fill material into non-ticlal
waters of the U.S., excluding non-ticlal
wetlands adjacent to tidal waters, for the
construction or expansion of residential,
commercial, and institutional building
foundations and building pads and
attendant features that are necessary for
the use and maintenance of the
structures. Attendant features May
include, but are not limited to, roads,
parking lots, garages, yards, utility lines,
stornnwater management facilities, and
recreation facilities such as
playgrounds, playing fields, and golf
courses (provided the golf course is an
integral part of the residential
development). The construction of new
ski areas or oil and gas wells is not
authorized b this NWP.
Residential developments include
multiple and single unit developments.
Examples of commercial developments
include retail stores, industrial facilities,
restaurants, business parks, and
shopping centers. Examples of
institutional developments include
schools, fire stations, government office
buildings, judicial buildings, public
works buildings, libraries, hospitals,
and places of worship. The activities
listed above are authorized, provided
the activities meet all of the following
criteria:
a. The discharge does not cause the
loss of greater than 1/,-acre of non-tidal
waters of the U.S., excluding non-tidal
wetlands adjacent to tidal waters;
b. The discharge does not cause tine
loss of greater than 300 linear-feet of a
stream bed, unless for intermittent
stream beds this criterion is waived in
writing pursuant to a determination by
the District Engineer, as specified
below, that the project complies with all
terms and conditions of this NWP and
that any adverse impacts of the project
on the aquatic environment are
minimal, both individually and
cumulatively;
c. The permittee must notify the
District Engineer in accordance with
General Condition 13, if any of the
following criteria are met:
(1) The discharge causes the loss of
greater than V,o-acre of non-tidal waters
of the US, excluding non-tidal wetlands
adjacent to tidal waters; or
(2) The discharge causes the loss of
any open waters, including perennial or
intermittent streams, below the ordinary
Ili h water mark (see Note, below); or
The discharge causes the loss of'
greater than 300 linear feet of
intermittent stream bed. In such case, to
be authorized the District Engineer nnist
determine that the activity complies
with the other terms and conditions of
the NWP, determine adverse
environmental effects are minintal hoth
individually and cumulatively, and
waive the limitation on stream impacts
in writing before the permittee may
proceed;
cl. For discharges in special aquatic
sites, including wetlands, the
notification must include a delineation
of affected special aquatic: sites;
e. The discharge is part of a single and
complete project;
I. The permittee must avoid and
minimize discharges into waters of the
US at the project site to the maximum
extent practicable. The notification,
when required, most include a written
statement explaining how avoidance
and minimization of losses of waters of
the US were achieved on the project
site. Compensatory mitigation will
normally be required to offset the losses
of waters of the US. (See General
Condition 19.) The notification must
also include a compensatory mitigation
proposal for offsetting unavoidable
losses of waters of the US. If an
applicant asserts that the adverse effects
of the project are minimal without
mitigation, then the applicant may
submit justification explaining why
compensatory mitigation should not he
required fonthe District Engineer's
consideration;
g. When this NWP is used in
conjunction with any other NWP, any
combined total permanent loss of waters
of the US exceeding V,o-acre requires
that the permittee notify the District
Engineer in accordance with General
Condition 13;
h. Any work authorized by this NWP
must not cause more than minimal
degradation of water quality or more
than minimal changes to the flow
characteristics of any stream (see
General Conditions 0 and 21);
i. For discharges causing the loss of
V,o-acre or less of waters of the US, the
permittee must submit a report, within
30 clays of completion of the work, to
the District Engineer that contains the
following information: (1) The name,
address, and telephone number of the
permittee; (2) The location of the work;
(3) A description of the work; (4) The
type and acreage of the loss of waters of
the US (e.g., 1/2-acre of emergent
wetlands); and (5) The type and acreage
of any compensatory mitigation used to
offset the loss of waters of the US (e.g.,
1/z-acre of emergent wetlands created
on-site);
j. If there are any open waters or
streams within the project area, the
permittee will establish and maintain, to
the maxinmml extent practicable,
wetland or upland vegetated buffers
next to those open waters or streams
consistent with General Condition 19.
Deect restrictions, conservation
easements, protective covenants, or
other means of land conservation and
preservation are required to protect and
maintain the vegetated buffers
established on the project site.
Only residential, commercial, and
institutional activities with Structures
on the founclation(s) or building pad(s),
as wel l as the attendant features, are
authorized by this NWP. The
6694 Federal Register/ Vol. 67, No. 30 / Wednesday, February 13, 2002 /Notices
compensatory mitigation proposal that
is required in paragraph (f) of this NWP
may be either conceptual or detailed.
The wetland or upland vegetated buffer
required in paragraph (j) of this NWP
will be determined on a case-by-case
basis by the District Engineer for
addressing water quality concerns. The
required wetland or upland vegetated
buffer is part of the overall
compensatory mitigation requirement
for this NWP. If the project site was
previously used for agricultural
purposes and the farm owner/operator
used NWP 40 to authorize activities in
waters of the United States to increase
production or construct farm buildings,
NWP 39 cannot be used by the
developer to authorize additional
activities in waters of the United States
on the project site in excess of the
acreage limit for NWP 39 (i.e., the
combined acreage loss authorized under
NWPs 39 and 40 cannot exceed 1/2 acre).
Subdivisions: For residential
subdivisions, the aggregate total loss of
waters of US authorized by NWP 39 can
not exceed 1/2-acre. This includes any
loss of waters associated with
development of individual subdivision
lots. (Sections 10 and 404)
Note: Areas where wetland vegetation is
not present should be determined by the
presence or absence of an ordinary high
water mark or bed and bank. Areas that are
waters of the US based on this criterion
would require a PCN although water is
infrequently present in the stream channel
(except for ephemeral waters, which do not
require PCNs under paragraph (c)(2), above;
however, activities that result in the loss of
greater than V,o acre of ephemeral waters
would require PCNs under paragraph (c)(1),
above).
On page 2088, in the sixth sentence of
the first paragraph in the first column,
the phrase "an adequate water quality
management plan" is replaced with the
phrase "adequate water quality
management measures" to reflect the
modified language in General Condition
9. This sentence is corrected to read
"The facility must have adequate water
quality management measures in
accordance with General Condition 9,
such as a storrnwater management
facility, to ensure that the recreational
facility results in no substantial adverse
effects to water quality."
On page 2089, first column, the
second sentence of paragraph (c) of
NWP 44 is corrected to read "Normally,
the water quality management ieasures
required by General Condition 9 should
address these impacts;". In addition, the
second sentence of paragraph (i) of NWP
44 is corrected to read "Further the
District Engineer may require water
quality management measures to ensure
the authorized work results in minimal
adverse effects to water quality;" These
corrections are necessary to reflect the
modified language in General Condition
9.
On page 2089, third column, the text
of General Condition 6 is corrected to
read: "The activity must comply with
any regional conditions that may have
been added by the Division Engineer
(see 33 CFR 330,4(e)) and with any case
specific conditions added by the Corps
or by the state or tribe in its Section 401
Water Quality Certification and Coastal
Zone Management Act consistency
determination." The change to General
Condition 6 that was published in the
January 15, 2002, Federal Register was
not intended and we are correcting this
sentence by reinstating the original text
as it existed in the March 9, 2000,
NWPs.
On page 2090, first column, the word
"Section" in the parenthetical at the end
of General Condition 10 is replaced with
"33 CFR" so that the parenthetical reads
"(see 33 CFR 330.4(d))".
On page 2090, at the top of the second
column, the second Internet URL is
replaced with "* * * http:H
wwcv.nm fs. n oaa.go v/pro t_res/o vervie wl
es.html * * *" because the Internet
address for the National Marine
Fisheries Service home page for
endangered species has been changed.
On page 2090, third column, in
paragraph (b)(4) of General Condition
13, NWP 40 should be added to the list
of NWPs that require submission of
delineations of special aquatic sites with
pre-construction notifications.
Therefore, paragraph (b)(4) of General
Condition 13 is corrected to read "For
NWPs 7, 12, 14, 18, 21, 34, 38, 39, 40,
41, 42, and 43, the PCN must also
include a delineation of affected special
aquatic sites, including wetlands,
vegetated shallows (e.g., submerged
aquatic vegetation, seagrass beds), and
riffle and pool complexes (see paragraph
13(0);"
On page 2090, third column, in
paragraph (b)(6) of General Condition
13, the word "Projects" replaces the
word "Crossings", because the title of
NWP 14 is "Linear Transportation
Projects".
On page 2090, third column, in
paragraph (b)(8) of General Condition
13, the word "Activities" is inserted
after the word "Restoration" because the
title of NWP 27 is "Stream and Wetland
Restoration Activities".
On page 2091, first column, in
paragraph (b)(10) of General Condition
13, the word "Projects" is replaced with
the word "Facilities" because the title of
NWP 31 is "Maintenance of Existing
Flood Control Facilities".
Oil page 2094, third column, we are
correcting the definition of "Loss of
Waters of the US" by deleting the last
sentence and inserting the following
sentence after the fourth sentence of this
definition: "Impacts to ephemeral
streams are not included in the linear
foot measurement of loss of stream bed
for the purpose of determining
compliance with the linear foot limits of
NWPs 39, 40, 42, and 43."
Due to the number of corrections
made to the definition of "Loss of
Waters of the US", we are providing the
text of this definition in its entirety,
with the corrections described above:
Loss of Waters of the US: Waters of
the US that include the filled area and
other waters that are permanently
adversely affected by flooding,
excavation, or drainage because of the
regulated activity. Permanent adverse
effects include permanent above-grade,
at-grade, or below-grade fills that change
an aquatic area to dry land, increase the
bottom elevation of a waterbody, or
change the use of a waterbody. The
acreage of loss of waters of the US is the
threshold measurement of the impact to
existing waters for determining whether
a project may qualify for an NWP; it is
not a net threshold that is calculated
after considering compensatory
mitigation that may be used to offset
losses of aquatic functions and values.
The loss of stream bed includes the
linear feet of strearn bed that is filled or
excavated. Impacts to ephemeral
streams are not included in the linear
foot measurement of loss of stream bed
for the purpose of determining
compliance with the linear foot limits of
NWPs 39, 40, 42, and 43. Waters of the
US temporarily filled, flooded,
excavated, or drained, but restored to
preconstruction contours and elevations
after construction, are not included in
the measurement of loss of waters of the
IIS.
In the January 15, 2002, Federal
Register, it was stated that the definition
was being revised (to clarify that
ephemeral waters and streams are not
included in the acreage or linear
thresholds for NWPs) to comport with
language in the preamble of the March
9, 2000 Federal Register notice.
However, the language in the preamble
of tho March 9, 2000 Federal Register
notice (65 FR 12881, third column) does
not support this revision. Rather, the
referenced preamble states, "During our
review of the continents received in
response to the July 21, 1999, Federal
Register notice, we found an error in the
proposed definition of the terns, "loss of
waters of the United States." In the
focu•tli sentence of the draft definition,
we stated that the loss of stream bed
'Federal Register/ Vol. 67, No. 30 /Wednesday, February 13, 2002 /Notices 6695
includes the linear feet of perennial or
intermittent stream bed that is filled or
excavated. This statement is inaccurate
because ephemeral stream bed that is
filled or excavated can also be
considered a loss of waters of the United
States. However, the 300 linear foot
limit for stream beds filled or excavated
does not apply to ephemeral streams.
We have modified this sentence to
define the loss of stream bed as the
linear feet of stream bed that is filled or
excavated." 'T'hus, the modification of
this definition was intended to clarify
that activities that involve filling or
excavating ephemeral streams are not
included in the linear foot limits for
filling or excavating stream beds in
NWPs 39, 40, 42, and 43. However, it
was not intended to exempt ephemeral
waters or streams from calculations of
impacted acreages to determine PCN or
maximum acreage requirements in
accordance with NWPs 39, 40, 42, and
43.
In the August 9, 2001, Federal
Register notice (66 FR 42099) we
proposed to modify the definition of
"Loss of Waters of the US" by adding
the sentence "* * The loss of stream
bed includes the linear feet of perennial
stream or intermittent stream that is
filled or excavated * * *". The
proposed change was in response to a
commitment to clearly state in the text
of the NWPs (which includes the
definitions) that the 300 linear foot limit
in NWPs 39, 40, 42, and 43 for filling
and excavating stream beds would only
apply to intermittent and perennial
streams, not to ephemeral streams.
In the January 15, 2002, Federal
Register notice (67 FR 2074-2075) we
erroneously stated that both the acreage
and linear limits of the NWPs do not
apply to ephemeral waters. This was
never intended to be adopted as policy
for the NWPs or the Corps regulatory
program. A previously stated, in the first
column of page 2075 of the January 15,
2002, Federal Register notice, we refer
to page 12881 of the March 9, 2000,
Federal Register notice, which only
discusses the 300 linear foot limit, not
the acreage limits of the NWPs. Our
intent is to continue to apply acreage
limits of NWPs to activities that result
in the pcrnulnent loss of ephemeral
waters, but the linear foot limits of the
NWPs (i.e., NWPs 39, 40, 42, and 43) for
filling or excavating stream beds would
not apply to activities that involve
filling or excavating ephemeral streams.
The last sentence of the definition of
"Loss of Waters of the US" as published
in the January 15, 2002, Federal
Register notice sloes not comport wit11
remainder of this NWP package.
Tllerefore, we are correcting this
definition as described above.
We believe that correcting the text of
NWP 39 and the definition of "Loss of
Waters of the US" through the
publication of this correction notice is
appropriate. Nevertheless, in order to
give all interested parties further
opportunity to comment on this matter,
we intend to publish a Federal Register
notice to solicit public comments on
those two corrections. If we determine
that any other matter relating to the final
NWPs requires correction or
clarification, but that matter was not
adequately dealt with in this correction
notice, we will address that additional
matter in the forthcoming Federal
Register notice, as well. We expect to
publish that Federal Register notice
within a few weeks.
Dated: February 7, 2002.
Lawrence A. Lang,
Assistant Chief, Operations Division,
Directorate of Civil Works.
[FR Doc. 02-3555 Filed 2-12-02; 8:45 aml
BILLING CODE 1710-92-P
DEPARTMENT OF DEFENSE
Uniformed Services University of the
Health Sciences
Sunshine Act Meeting
AGENCY HOLDING THE MEETING:
Uniformed Services University of the
Health Sciences.
TIME AND DATE: 8:00 a.m. to 4:00 p.m.,
February 5, 2002.
PLACE: Uniformed Services University
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Conference Room (D3001), 4301 Jones
Bridge Road, Bethesda, MD 20814-4799.
STATUS: Open-under "Government in
the Sunshine Act" (5 U.S.C. 552b(e)(3)).
MATTERS TO BE CONSIDERED:
8:30 a.m. Meeting-Board of Regents
(1) Approval of Minutes--November 14,
2001
(2) Faculty Matters
(3) Department Reports
(4) Financial Report
(5) Report--President, USUIIs
(6) Report--Doan, School of Medicine
(7) Report--Dean, Graduate School of
Nursing
(8) Comments-Chairman, Board of
Regents
(9) New Business
CONTACT PERSON FOR MORE INFORMATION:
Mr. Bobby D. Anderson, Executive
Secretary, Board of Regents, (301) 295-
3116.
Dated: February 8, 2002.
Linda Bynum,
OSD Federal liegisterLiaison Officer,
Department of Defense.
[FR Do(:. 02-3683 Filed 2-11-02; 3:32 pill)
BILLING CODE 5001-08-M
DEPARTMENT OF EDUCATION
Submission for OMB Review;
Comment Request
AGENCY: Department of Education.
SUMMARY: The Leader, Regulatory
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of the Chief Information Officer invites
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DATES: Interested persons are invited to
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ADDRESSES: Written comments should
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Attention: Lauren Wittenberg, Desk
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Lauren - [e-mail].
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